4DCA Division 3 Oral Argument - 2026/02/17 - Feb 17, 2026

argument

4DCA Division 3 Oral Argument - 2026/02/17

California Fourth District Court of Appeal, Division Three 4h 17m 1 speaker 6 chapters transcribed 7 days ago official recording ↗

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Transcript generated automatically by AI and may contain errors.

What pre‑court administrative steps are being handled at the beginning of the session?

Unknown 1:37

I have to add another appearance to

Brian Charles Osler Senior 8:09

We'll get you set up here. I'm gonna have you start setting up. I'll go get a monitor, I'll be right back.

Unknown 8:13

I'll give you her phone.

Brian Charles Osler Senior 8:15

Unknown 8:16

oh you have one? Okay, so you don't need one? Okay. All right.

Brett Wiseman 8:29

Yeah, give me two.

Eric Schiffer 8:35

Yeah, uh is the first case preference that she

Eric Schiffer 9:05

Okay, power. If you need power, I can plug you in.

Unknown 9:09

Yeah, yeah.

Unknown 10:33

So I'll come back as soon as four argument. Right. And uh so no need for anything else?

Justice Moore 10:44

Okay.

Unknown 10:47

Okay. All right, I'll talk to you soon. Okay, thank you so much.

Unknown 11:07

Yeah.

Melissa Fox 13:17

Yeah, man.

Unknown 18:39

Morning everyone. Uh, if I can get your attention real quick, just a few court rules. Uh reminder: no eating, no chewing gum, no drinking liquids while you're back there. Uh cell phones that obviously we took possession of of and we're we're safely keeping them in the front. Uh restrooms are outside, opposite end, if you haven't uh found that, and there is a water fountain uh right across from that restroom. For council, when you come up, there is water provided for you. Uh there is also hand-size Masks, wipes, whatever you need. This podium does adjust in height, so it doesn't stay this this level. There's a black button right here. You hold it up for up, and vice versa for down. Okay. Currently it's not recording right now, but as soon as it turns red, it will pick up any activity or any voice in the back far back room.

Unknown 19:24

Okay. Please keep your voices to the minimum. And those that are here just to observe that's what you're doing, just observing. No uh no nodding your head in disagreement, no speaking up. Uh let your council take care of the of what they need to do. Okay. Uh any questions, concerns? No? Okay. Thank you.

Unknown 19:49

If you can explain the rules of the header, please. Thank you.

Unknown 20:33

Just FY, there is panel change but it's really quick, so don't step out too long. Thank you.

Unknown 31:03

I'll rise. Court of Appeal Fourth of Powell District Division Three is now set.

Justice Moore 31:08

Good morning everyone. Good

Unknown 31:09

morning, Ryan.

Justice Moore 31:16

I am Justice Moore and to my right is Justice Gooding and to my left is Justice Scott. We have three matters on calendar this morning. This panel will preside over two of them. Then we'll have a very brief recess for a panel change and another panel will preside over the last matter. The first case is in ray marriage of Babiash. I hope I pronounced that correctly.

Melissa Fox 31:50

Good morning, Arnold. If I could just make a correction, uh it isn't a marriage case, it is a petition uh for grandparent visitation.

Justice Moore 32:02

Yes, thank you. Uh petitioner may proceed.

Melissa Fox 32:06

Thank you

Justice Moore 32:16

So the case is concerning uh whether or not petitioner is entitled to a presumption that he is a fit parent As well as a presumption that he is acting in his son's best interest.

Melissa Fox 32:31

Well good morning, Your Honor. Yes, Melissa Fox, um, for a palant Alec Markin. This appeal presents a narrow question. Whether the trial court may order grandparent visitation over the objection of a fit parent without clear and convincing evidence that denial of visitation visitation would be detrimental to the child. The court did not apply the constitutional threshold, did not make a detriment finding, and did not give special weight to the father's decision as required by Troxel and Family Code Section three one hundred two, and for that reason the order must be reversed. Section three one oh two allows grandparent visitation when a parent is deceased, but under Troxel, a fifth parent's decision regarding visitation is entitled to special dates.

Melissa Fox 33:15

Um that creates a presumption in favor of the surviving parent. That presumption may only be overcome by clear and convincing evidence that denial of visitation would be detrimental to the child. This is not a best interest inquiry once a parent objects. Under conservatorship of OB, when clear and convincing evidence is required, the reviewing court must determine whether the record contains evidence that leaves no substantial doubt that uh harm was uh would have occurred to the child in the event of denial of the visitation. And that's the controlling framework. Here the court made three critical omissions. First, there was no finding at all that denial of visitation would harm the child.