Parental Rights in California

California State Law and Parental Rights

Not Explicitly Defined and Protected

California law does not protect parental rights as fundamental rights. We are actively working in California to prevent further loss of parental rights.

The California Supreme Court in Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1107, 105 Cal.Rptr.2d 139, held that “Troxel essentially affirmed the cardinal rule, as stated by the Supreme Court, ‘that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ (Lulay v. Lulay, supra, 739 N.E.2d at p. 531, quoting Prince v. Massachusetts (1944) 321 U.S. 158, 166.).... A constitutional due process challenge based on an alleged infringement of this fundamental right requires
the court to apply a strict scrutiny test.”

Herbst v. Swan (2002) 102 Cal.App. 4 th 813, 819, 125 Cal.Rptr.2d 836 also applied the strict scrutiny standard.

However, the courts in more recent cases have refused to require this standard in grandparent visitation cases, including Fenn v. Sheriff, 1 Cal.Rptr.3d 185, 201 (Cal. Ct. App. 2003) and Re: Marriage of Harris 96 P.3d 141, 149, 151 (Cal. 2004) (which, citing Troxel, calls for courts to apply “some special weight to the parent’s own determination”) (emphasis added).

(a) The Legislature finds and declares that a parent's fundamental right to provide for the care, custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a fundamental right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role.

(b) The court may grant reasonable visitation rights to a person who previously served as the legal guardian of a child, if visitation is determined to be in the best interest of the minor child.