Finberg v. Manset

Filed 1/28/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JOYCE R. FINBERG, 2d Civil No. B245787 (Super. Ct. No. 1386026) Plaintiff and Appellant, (Santa Barbara County)

v.

PHILIP MANSET et al.,

Defendants and Respondents.

Joyce R. Finberg appeals an order dismissing her petition for visitation with her grandson J. (Fam. Code, § 3104.)1 J. was adopted by his stepfather. Section 3104, subdivision (b) limits grandparent visitation when the parents are married and living together, but subdivision (b)(5) provides an exception where "the child has been adopted by a stepparent." The trial court found that section 3104, subdivision(b)(5) (hereafter "subdivision (b)(5)") violates equal protection principles because it does not rationally distinguish between nuclear families with biological parents and families with adoptive parents. It therefore concluded Finberg lacks standing to bring her petition. Here we conclude subdivision (b)(5) does not violate the equal protection clauses of the federal or state Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7(a).) We reverse. Finberg has standing to file her petition.

1 All statutory references are to the Family Code.

FACTS AND PROCEDURES Paternal grandmother Finberg petitions to establish grandparent visitation with J. over the objection of his natural mother Pollyana Manset and his adoptive father Philip Manset. Pollyana was previously married to Finberg's son, Anthony.2 Pollyana and Anthony had one child, J., in 2001. They divorced in 2004. Pollyana married Philip in 2005. They had two children, S. and A. In January 2009, Philip adopted J., after the court terminated Anthony's parental rights. Finberg argues she has had a close relationship with all three children throughout their lives and was once J.'s primary caregiver. The Mansets agree that initially Finberg was helpful with the children, but contend she became controlling, did not respect their wishes concerning the care of the children, and deliberately undermined their parenting authority. In November 2011, Pollyana would not allow contact between Finberg and the children. A few months later, Philip filed a request for a domestic violence restraining order to keep Finberg away from Pollyana, the three children, and himself. The next day, Finberg filed a request for grandparent visitation with the three children. The Mansets moved to dismiss Finberg's petition for visitation with all three children on the ground that Finberg lacks standing because the children's parents are married and living together. (§ 3104, subd. (b).) Finberg concedes she does not have standing to request visitation with S. and A. But she argues that is not the case with J. DISCUSSION Standard of Review We review de novo questions of interpretation and constitutionality of a statute. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 360.) We decline the Mansets' invitation to review the trial court's