Bookstein v. Bookstein

California Court of Appeal May 5, 1970 No. Civ. 26380Published

Before: Caldecott

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Holding. The court held that it had jurisdiction to grant visitation rights to grandparents based on a prior stipulation and that the trial court did not abuse its discretion in determining that such visitation was in the best interest of the child.

Issues

Whether the trial court had jurisdiction to grant visitation rights to the grandparents.
Whether the trial court abused its discretion in determining that visitation was in the best interest of the child.

Disposition. Affirmed in part and dismissed in part.

Quotations verified verbatim against the opinion

“The court, in effect, found in making the order that it was for the best interest and welfare of the child.”

“Trial courts have ‘very extensive discretion’ in matters of this kind and the conclusion arrived at by such courts in such cases will not be set aside unless the record discloses a clear abuse of discretion.”

Opinion

CALDECOTT, J.

The appellant (father) appeals from orders of the superior court granting certain specified visitation privileges to the respondents (grandparents) of the minor child.

Custody of the minor child, Benjamin, had been awarded jointly to the parents and the actual physical custody to the maternal grandparents, Mr. and Mrs. Curl, at the time of the divorce in February 1964. The mother of the child had suffered from a mental illness for some time and was unable to care for the child. Benjamin had been residing with the grandparents since September 1961, and continued to do so until November 1966.

In August 1966 appellant filed a petition for change of custody of the minor child. A stipulation was entered into between the appellant (father) and defendant (mother) and the respondents (grandparents), through their attorneys, whereby it was agreed that the actual physical custody would be in the appellant, with rights of reasonable visitation to the grandparents.

In October 1966 an order modifying the judgment pursuant to this stipulation was entered. On June 3, 1968 on motion of the grandparents, the trial court entered an order granting the grandparents the right “to a visitation of Benjamin at the home of petitioners in Ohio during the month of July 1968. . . .” The order also provided in part as follows: “It is further ordered that in addition to the foregoing, at least once during each winter or spring vacation, upon prearrangement, the petitioners may visit said minor in California and have him with them for a period not exceeding three days.”

On July 17, 1968 an order was entered changing the time of the Ohio visit from the month of July to the period, August 1 to August 30, 1968. The appellant has appealed from the June 3, 1968 and the July 17, 1968 orders.

The briefs of the appellant and respondents are devoted to the propriety of the orders as they relate to the visitation in Ohio during the months of

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July and August 1968. Whether or not the child made the trip to Ohio in 1968 is not clear but obviously there is nothing this court can do about the visit now and that issue is moot. The order of June 3, 1968, however, does contain the provision relative to the grandparents visiting in California and having the child with them for a period not exceeding three days. This part of the order is still effective and the contentions of appellant, as they relate to it, will be considered.

Bookstein v. Bookstein

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CALDECOTT, J.

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