Colleen MacTavish-Thurber v. Timothy Gauvin , 202 A.3d 232 ( 2019 )

March 13, 2019
Supreme Court
No. 2017-48-Appeal.
(P 15-188M)
Colleen MacTavish-Thurber :
v. :
Timothy Gauvin. :
NOTICE: This opinion is subject to formal revision before publication in
the Rhode Island Reporter. Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Tel. 222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.
Supreme Court
No. 2017-48-Appeal.
(P 15-188M)
Colleen MacTavish-Thurber :
v. :
Timothy Gauvin. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. The plaintiff, Colleen MacTavish-Thurber, 1 appeals a
Family Court order denying a miscellaneous petition filed pursuant to G.L. 1956 §§ 15-5-24.1
and 15-5-24.3 for grandparent visitation with two children of her daughter, who is deceased, and
the defendant, Timothy Gauvin. This case came before this Court for oral argument on January
17, 2019, pursuant to an order directing the parties to appear and show cause why the issues
raised in this appeal should not summarily be decided. After hearing the arguments of counsel
and examining the memoranda filed on behalf of the parties, we are of the opinion that cause has
not been shown, and we proceed to decide the appeal at this time without further briefing or
argument. For the reasons set forth in this opinion, we affirm the order of the Family Court.
1
Although the Family Court’s decision lists the plaintiff’s first name as Stacy, the lower court
file and the statements filed with this Court refer to her as Colleen. Additionally, throughout this
opinion, we use pseudonyms to identify the two minor children to protect their privacy.
-1-
I
Facts and Travel
The plaintiff is the maternal grandmother of two minor children: Danielle, who was born
in May 2006, and Adam, who was born in September 2007. The defendant is the biological
father of both children, and he was previously married to plaintiff’s daughter. The defendant
testified that there had been a filing for divorce and he had full custody of the children.
However, in December 2010, before the divorce became final, the mother of Danielle and Adam
died after she was shot by law enforcement during the course of a bank robbery in Florida.
In April 2015, plaintiff filed a miscellaneous petition in the Providence County Family
Court in which she sought grandparent visitation with her grandchildren, Danielle and Adam.
Specifically, her petition averred that for more than thirty days she had made repeated attempts
to see her grandchildren, but that defendant had refused her visitation requests. The plaintiff
further claimed that, without court intervention, she would not be able to visit her grandchildren
and that defendant’s refusal to allow her to visit with them was unreasonable. She alleged that it
was in the best interests of the grandchildren to allow her to visit with them and that she was a fit
and proper person to exercise visitation rights.
The petition eventually was heard before a justice of the Family Court, and plaintiff,
defendant, and defendant’s current wife, Sarah Gauvin, all testified. The plaintiff testified that,
in September 2010, her daughter separated from defendant, her husband, and left the marital
domicile. Because defendant was left with the couple’s two children, and due to his work
schedule, plaintiff agreed to care for Danielle and Adam on the weekends. 2
2
The plaintiff testified that, from September 2010 to February 2011, the children would also
have dinner at her house during the week when defendant was working.
-2-
Danielle and Adam were informed of their mother’s death in February 2011, when they
were just four and three years old, respectively. According to plaintiff, she and defendant agreed
to tell Danielle and Adam that their mother had passed away as a result of a motor vehicle
accident because “the children were too young at that time to understand and take on that she
was shot in the head and died on the street in Florida.” She testified that, as soon as defendant
informed her that the children had been told of their mother’s death, she dedicated a tree in her
backyard to her deceased daughter and sprinkled her daughter’s ashes on the tree at a time when
Danielle and Adam were present.
The plaintiff further testified that, beginning in 2012, she was spending less time with
Danielle and Adam, and her time with her grandchildren diminished even more when defendant
and his current wife, Sarah Gauvin, married. According to plaintiff, she did not have a good
relationship with defendant’s new wife, and she felt that “there was always resistance.”
The plaintiff testified that in 2015 she saw Danielle and Adam in January, February, and
March, but that the March 2015 visit was the last time she saw them. 3 According to plaintiff,
defendant contacted her in March 2015 to set up a meeting to discuss behavioral issues that the
children were experiencing, but the meeting never occurred.
The plaintiff also testified that, in March and April 2015, she tried to contact defendant so
that she might see the children, but that defendant failed to return her messages. She said that
she would leave two to three—and she admitted maybe one time, four—messages per day, two
to three times per week. She also testified that her husband may have once left a voicemail
message for defendant around 6:00 am. The plaintiff reported that she received one response
3
Introduced as evidence during the petition hearing were photographs of the children at
plaintiff’s house, taken during the January 2015 visit. In the photos, plaintiff contends that the
children appear to be cheerful and content.
-3-
from defendant, informing her that the children did not want to speak to her, but she nonetheless
continued to leave voice and text messages.
The plaintiff testified that she had no idea why defendant had become angry with her.
She further testified that she believed it would be possible to rekindle a relationship with
defendant, but that first she had to be reintroduced to the children. She acknowledged that
defendant is a good and fit parent for Danielle and Adam.
The defendant was next to testify. He said that, although plaintiff never babysat the
children before their mother’s death, she “had [his] side” during the divorce and she put the best
interests of the children over her own daughter’s interest. The defendant also testified that he
waited until February 2011 to inform the children of their mother’s passing. He said that his
decision in that regard was founded on the fact that the incident resulting in his former wife’s
death occurred just before Christmas, and he “wanted to make sure that [he] had a period of time
that [he] could spend with them” when he was not working and they were not in school or
daycare. 4 The defendant testified that plaintiff wanted to inform Danielle and Adam of their
mother’s death immediately, but that eventually she agreed with his reasoning. Eventually,
however, defendant told the children the truth about how their mother had been killed because he
“didn’t want them thinking that their mother was this fictitious great person that their
grandmother was saying she was.” The defendant also testified that, at some point, plaintiff had
invited him to participate in the sprinkling of her daughter’s ashes on the tree in her backyard
with the children, but that he did not go because he was working at that time.
In July or August 2012, defendant began his relationship with the woman who would
become Mrs. Gauvin. The couple began living together in November 2012, and they eventually
4
The plaintiff testified that defendant did not believe the children needed counseling at the time
that they were informed of their mother’s death.
-4-
married in August 2013. 5 The defendant testified that plaintiff started spending less time with
the children around this time because he and Mrs. Gauvin worked opposite schedules so one of
them would always be at home to take care of the children. 6
The defendant further testified that, at some point, Danielle and Adam were having
behavioral issues at school and at home, and that those issues “always occurred after visits with
their grandparents.” As a result, Adam began seeing a counselor at school, starting in November
2014, in an effort to address his issues. The defendant also described that, after visiting with
plaintiff, the children “would come home with huge bags under their eyes” signaling a lack of
sleep, and that sometimes they would come home sick with symptoms such as diarrhea and
vomiting.
Starting in 2014, defendant allowed the children to decide whether or not they wished to
visit, not only with plaintiff, but also with his own mother and Mrs. Gauvin’s parents. 7 After the
March 2015 visit with plaintiff, defendant testified that Adam came home “balling [sic] his eyes
out” because plaintiff had shown their mother’s ashes to the children that day. Adam told his
father that the display of the ashes frightened him. Adam also described to his father what the
ashes looked like and how he, Danielle, and plaintiff had sorted through his mother’s belongings.
Furthermore, in that same month, Adam needed to see the school nurse and a physician
because he had a pulse rate of 200 beats per minute. Even though Adam had had a history of an
elevated heartbeat as an infant, he had not exhibited such symptoms for several years.
5
The couple also had a child together, who was just over a year old at the time of the hearing on
plaintiff’s petition.
6
The defendant testified that his own mother would also care for Danielle and Adam on alternate
weekends before his remarriage; he said that his own mother’s time with the children had also
diminished since his remarriage.
7
There was testimony presented to the Family Court that defendant also allowed the children to
decide whether they wanted to attend church and that the children had gone to church with Mrs.
Gauvin.
-5-
Additionally, defendant testified that, after the March 2015 visit, Adam would wake up afraid
that plaintiff was “coming to get him in the middle of the night[,]” that he feared being shown
the ashes, and that he repeatedly heard a song from a music box that once belonged to his
mother. According to defendant, he never had a discussion with plaintiff that gave her
permission to show the children their mother’s ashes on that day, and displaying their mother’s
ashes to the children was the “final nail” after several disagreements and arguments about what
the children should and should not be doing while they were at plaintiff’s home. 8
According to defendant, since the March 2015 visit, he prevented plaintiff from visiting
with Danielle and Adam because they did not wish to see her. The defendant testified that he
believed that showing the mother’s ashes to Adam was “incredibly inappropriate” and that it had
been mentally damaging to Adam. The defendant also said that, after the last visit, he was
barraged with phone calls and voicemail messages from plaintiff and her husband and that he
had contacted the police because he considered the phone calls to be a form of harassment.
Since that point, defendant testified, the phone calls had ceased.
In stark contrast to plaintiff’s testimony, defendant testified that he believed that the
children should not visit with plaintiff again. He said that Adam’s behavior had improved
“insanely” since the cessation of visitation, that there were rarely any issues at home or school,
that his grades were “phenomenal,” that his teacher gave great progress reports, and that both
children were on a regular routine with homework and their sleep. The defendant also conveyed
that Adam stopped seeing the school counselor in June 2015, a few months after the visits with
plaintiff came to an end.
8
The defendant also testified that he was not solely relying on his children’s descriptions with
respect to “what was lacking at [plaintiff’s] house[,]” but had spoken to plaintiff about these
incidents as well.
-6-
Mrs. Gauvin was the last to testify. She said that she noticed a change in the children’s
behavior at “the very end of 2012, beginning of 2013[,]” and that Adam in particular would have
behavioral issues when they would return home from plaintiff’s house. She further testified that
the children had never showcased those behaviors before that time. Moreover, after the last visit
with plaintiff, Mrs. Gauvin testified, the children had not demonstrated any behavioral issues.
A report from a Family Court investigator was accepted into the record. The investigator
had interviewed plaintiff, her husband, defendant, Danielle, and Adam. He also reviewed several
documents, including reports from Adam’s visits with the school counselor and his cardiac
physician, a police report from a minor incident between the parties, school communications, and
information concerning the death of the children’s mother. Ultimately, the investigator
recommended that Danielle and Adam should have no further visitation with plaintiff, basing his
conclusion “directly on the interviews of the children expressing that they disliked visiting with
their grandmother as well as with respect to the reports from the school social worker as well as
the wishes of their [f]ather.” The investigator observed that “the children have suffered enough
stress with the loss of their mother and that they are happy and healthy with their father and
step[]mother.”
The Family Court investigator also addressed the report authored by Adam’s school
counselor. In that report, the school counselor said that she started seeing Adam in November
2014 after a behavioral incident that had occurred at the school playground. She also noted that
she had spoken with Adam’s parents and they had informed her of his “frequent meltdowns[.]”
Specifically, she recounted how, in April 2015, Mrs. Gauvin told her about a recent visit that
Adam had had with his maternal grandmother when he was shown his mother’s ashes and the
negative impact it had had on both children. The school counselor also reported that when she
-7-
discussed that visit with Adam “he appeared to be upset as evidenced by a change in his facial
expressions and a decrease in his level of engagement[.]” She confirmed that Adam’s visits with
plaintiff were affecting the boy negatively, and she also reported that Adam was afraid that
plaintiff could “come over and take him” while he was at home or at school. The school
counselor recommended that any future visits with Adam and plaintiff be supervised by the
parents and be in a neutral location. She made this recommendation contingent, however, on
plaintiff “stopping all of the harassing type behavior that has reportedly been taking place.”
After the hearing, the hearing justice rendered a written decision in November 2016.
Upon considering the testimony of plaintiff, defendant, and Mrs. Gauvin, as well as the evidence
presented at the hearing and the Family Court investigator’s report, the court found that plaintiff
had satisfied her burden under § 15-5-24.3 of showing that she had made repeated attempts to
visit the children for thirty days prior to the time she filed her petition. Also, the hearing justice
concluded that plaintiff had proven there was no other way under the present circumstances that
she would be able to visit the children without court intervention. However, the court also found
that plaintiff was not a fit and proper person to have visitation rights with Danielle and Adam,
that plaintiff had failed to prove, by clear and convincing evidence, that defendant’s decision to
refuse visitation was unreasonable, and that it was in the children’s best interest not to visit with
plaintiff. The plaintiff timely filed a notice of appeal to this Court. 9
9
We note that, initially, no final judgment was entered in the Family Court. Following the
prebriefing conference, this Court remanded the case to the Family Court for entry of final
judgment in accordance with Rule 58(a) of the Family Court Rules of Domestic Procedure. On
remand, an order entered in the Family Court in May 2018, which denied plaintiff’s petition for
grandparent visitation. The papers were then returned to this Court in October 2018.
-8-
II
Standard of Review
In cases on review for grandparent visitation, we consider the “traditional presumption
that a fit parent will act in the best interest of his or her child.” Troxel v. Granville, 530 U.S. 57,
69 (2000). “[T]he decision whether such an intergenerational relationship would be beneficial in
any specific case is for the parent to make in the first instance.” Id. at 70. “[I]f a fit parent’s
decision of the kind at issue here becomes subject to judicial review, the court must accord at
least some special weight to the parent’s own determination.” Id. We review a hearing justice’s
decision whether to award grandparent visitation under an abuse-of-discretion standard. See
Puleo v. Forgue, 634 A.2d 857, 858 (R.I. 1993). 10 Moreover, “the findings of a [hearing] justice
will not be disturbed on appeal unless the [hearing] justice misconceived or overlooked material
evidence or was otherwise clearly wrong.” Id.III
Discussion
On appeal, plaintiff argues that the Family Court’s decision contradicts the evidence
presented at the hearing because many of the facts that the hearing justice purportedly erred in
evaluating “were actually the result of [defendant] sharing his opinion and [were of] no
independent evaluation or recommendation regarding the children.” She contends that she
proved, by clear and convincing evidence, that defendant’s decision to deny her grandparent
10
We note that the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000),
recognized that Rhode Island’s statute governing grandparent visitation was in compliance with
its holding. See Troxel, 530 U.S. at 70 (citing G.L. 1956 § 15-5-24.3(a)(2)(v)). For that reason,
the mere fact that Puleo v. Forgue, 634 A.2d 857 (R.I. 1993)—a case where this Court reviewed
a grandparent visitation decision under § 15-5-24.3—was decided before Troxel is of no moment
and correctly provides our standard of review here.
-9-
visitation was unreasonable. She also argues that she presented evidence that she was a fit and
proper person to have visitation.
Section 15-5-24.1 states that the Family Court “may, upon miscellaneous petition of a
grandparent whose child is deceased, grant reasonable visitation rights of the * * * grandchildren
to the grandparent, whether or not any divorce or custody proceedings were ever commenced,
and may issue all necessary orders to enforce visitation rights.” 11 Furthermore, § 15-5-24.3
states, in pertinent part:
“(a)(1) The family court, upon miscellaneous petition of a
grandparent for visitation rights with the petitioner’s grandchild,
and upon notice to both parents of the child, and after a hearing on
the petition, may grant reasonable rights of visitation of the
grandchild to the petitioner.
“(2) The court, in order to grant the petitioner reasonable rights of
visitation, must find and set forth in writing the following findings
of fact:
“(i) That it is in the best interest of the grandchild as determined on
a case-by-case basis that the petitioner is granted visitation rights
with the grandchild.
***
“(ii) That the petitioner is a fit and proper person to have visitation
rights with the grandchild;
“(iii) That the petitioner has repeatedly attempted to visit his or her
grandchild during the thirty (30) days immediately preceding the
date the petition was filed and was not allowed to visit the
grandchild during the thirty-day (30) period as a direct result of the
actions of either, or both, parents of the grandchild;
11
In addition to §§ 15-5-24.1 and 15-5-24.3, plaintiff also alleges that she filed her petition
pursuant to § 15-5-24.2. That statute is titled “Visitation rights of grandparents whose child is
denied or has failed to exercise rights” and allows the Family Court, upon petition by a
grandparent, to grant reasonable visitation rights to that grandparent during “any divorce
proceeding” when the grandchild is a child of the marriage. Here, the petition was not filed
during a divorce proceeding. For this reason, we note that § 15-5-24.2 is inapplicable to the case
before us, and that plaintiff’s petition was properly filed under §§ 15-5-24.1 and 15-5-24.3.
- 10 -
“(iv) That there is no other way the petitioner is able to visit his or
her grandchild without court intervention; and
“(v) That the petitioner, by clear and convincing evidence, has
successfully rebutted the presumption that the parent’s decision to
refuse the grandparent visitation with the grandchild was
reasonable.” 12
We have held, in citing with approval to the United States Supreme Court’s decision in Troxel,
that “a party who seeks visitation with a child must ‘overcome the otherwise applicable
presumption in favor of honoring a fit custodial parent’s determination not to allow such
visitation.’” Resendes v. Brown, 966 A.2d 1249, 1254 (R.I. 2009) (alteration omitted) (quoting
Rubano v. DiCenzo, 759 A.2d 959, 968 (R.I. 2000)); see also Keenan v. Somberg, 792 A.2d 47,
50 n.2 (R.I. 2002) (“The law’s concept of the family rests on a presumption that parents possess
12
We note that, subsequent to the hearing justice’s decision, the General Assembly amended
§ 15-5-24.3 to include factors that the hearing justice shall consider when determining whether it
is in the best interest of the grandchild to have visitation with the grandparent, and deleted a
requirement that notice be given to the child. See P.L. 2017, ch. 222, § 1; P.L. 2017, ch. 334, § 1.
Although it does not impact our decision in this case, those factors include, but are not limited to,
the following:
“(A) The nature of the relationship between the child and the
grandparent seeking visitation;
“(B) The amount of time the grandparent and child spent together;
“(C) The potential detriments and benefits to the child from
granting visitation;
“(D) The potential effect of granting visitation on the parent-child
relationship;
“(E) The preferences of the grandchild who is of sufficient
intelligence, understanding, and experience to express a
preference; and
“(F) The reasons that the parent(s) believe that it is not in their
child’s best interests to have visitation with the grandparent(s)[.]”
Section 15-5-24.3(a)(2)(i).
- 11 -
what a child lacks in maturity, experience, and capacity and that natural bonds of affection lead
parents to act in the best interests of their children.”) (deletion and alteration omitted) (quoting
Troxel, 530 U.S. at 68). Here, plaintiff admitted in her testimony below—and there was no
evidence presented to the contrary—that defendant is a fit custodial parent. 13 Therefore, plaintiff
had the burden of proving, “by clear and convincing evidence, [that she] has successfully
rebutted the presumption that [defendant’s] decision to refuse the grandparent visitation with
[Danielle and Adam] was reasonable.” See § 15-5-24.3(2)(v) (emphasis added).
We are satisfied that the hearing justice did not abuse his discretion in denying plaintiff’s
petition for grandparent visitation. In his eight-page written decision, the hearing justice
reviewed the testimony of all three witnesses as well as the report by the Family Court
investigator. He observed that the investigator’s report concluded that the children had no
interest in visiting with plaintiff, and he also considered the investigator’s observation that, in the
hearing justice’s words, the children “are happy and healthy with their father and stepmother” as
well as the investigator’s recommendation that “[p]laintiff have no further visitation with the
children in this matter.”
13
The plaintiff testified as follows before the Family Court at the hearing on her petition for
grandparent visitation:
“Q Is this a true statement: You have no doubt that [defendant]
desires a good life for his children?
“A Yes.
“Q Is it fair to say that his greatest strength has been his concern
for the children’s welfare and his ability to financially support
them sufficiently over the years; is that a fair statement?
“A Yes.”
- 12 -
Moreover, the hearing justice considered defendant’s testimony concerning the
detrimental impact that the visits with plaintiff had had on the children and the fact that neither
he nor the children wished to continue visits with plaintiff at that time. 14 He also recounted,
from the testimony by defendant and Mrs. Gauvin, how the children’s behavior, performance in
school, and health had improved since the visits with plaintiff had come to an end. These
findings, when combined with the presumption that defendant, as a fit parent, was acting in
Danielle and Adam’s best interest, leads us to conclude that the hearing justice was correct when
he denied grandparent visitation rights. See Keenan, 792 A.2d at 50; Puleo, 634 A.2d at 858.
The plaintiff has not offered any compelling legal argument as to why this Court should hold
otherwise. It is our opinion, therefore, that the hearing justice was well within his discretion
when he denied plaintiff’s petition for grandparent visitation with Danielle and Adam.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the order of the Family Court. The
papers in this case shall be remanded to that tribunal.
14
The hearing justice also noted similarities between defendant’s testimony and the school
counselor’s report regarding the negative impact that the visits had on Adam.
- 13 -
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case Colleen MacTavish-Thurber v. Timothy Gauvin.
No. 2017-48-Appeal.
Case Number
(P 15-188M)
Date Opinion Filed March 13, 2019
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia JJ.
Written By Associate Justice Francis X. Flaherty
Source of Appeal Providence County Family Court
Judicial Officer From Lower Court Associate Justice John E. McCann, III
For Plaintiff:
Jennifer Hoopis D’Ambra, Esq.
Attorney(s) on Appeal
For Defendant:
Joseph E. Marran III, Esq.
SU-CMS-02A (revised June 2016)