Fenn V. Sherriff

Pursuant to Family Code section 3102, *fn1 plaintiffs H. Sterling Fenn and Jan Fenn (grandparents) petitioned for a court order allowing them visitation with their grandchildren, Andrew and Benjamin, following the death of their daughter, Kathryn Sherriff. (All further section references are to the Family Code unless otherwise noted.) The children's father, defendant Robert Sherriff (father), opposed the petition and moved for summary judgment on the ground he and his new wife, who had adopted the children, both objected to court-ordered visitation. Among other things, father argued section 3102 "is unconstitutional as applied if it is construed to provide grandparent visitation over the objection of both parents." The trial court granted summary judgment on the ground grandparents had failed to allege father was an unfit parent and, in any event, had failed to raise a triable issue of fact as to father's fitness as a parent.