Gatliff v. Sisson

13 P.3d 152, 170 Or. App. 480, 2000 Ore. App. LEXIS 1721
CourtCourt of Appeals of Oregon
DecidedOctober 18, 2000
Docket960801; CA A102854
StatusPublished
Cited by1 cases

This text of 13 P.3d 152 (Gatliff v. Sisson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gatliff v. Sisson, 13 P.3d 152, 170 Or. App. 480, 2000 Ore. App. LEXIS 1721 (Or. Ct. App. 2000).

Opinion

EDMONDS, P. J.

Mother appeals from the trial court’s judgment granting paternal grandparents’ (grandparents) petition for visitation with their grandson (child). She assigns error to the trial court’s findings that she unreasonably denied visitation and that visitation is in child’s best interests. We review de novo, ORS 19.415(3), and reverse.

Mother and father married in December 1993. Mother gave birth to child in April 1994. Mother and father initially lived together with child, and then mother and child lived with grandparents while father was incarcerated for an assault of a previous girlfriend. Grandparents provided child care, transportation, food and money to both mother and child during that time. At some point, mother separated from father after father was released, and she moved from grandparents’ residence.

In May 1996, father petitioned for the dissolution of the marriage. Mother was awarded custody of child, and father exercised regular visitation for a seven-month period, while the dissolution was pending. At the time, father was living with grandfather, and grandparents saw the child regularly. Unfortunately, disputes arose about visitation arrangements, and on November 6, 1996, father violently assaulted mother outside her residence. He held both mother and child at gunpoint for several hours, threatening mother’s life and claiming that grandparents would take care of child once he killed mother, or had her killed by a third party. During much of the duration of the assault, child was in a car seat in the back of mother’s vehicle. Child may have seen father put a rifle into mother’s mouth, and he saw mother bleeding from the wounds that father inflicted. Child vomited on himself during the incident, and was not fed or changed throughout the three-hour attack, because father forced mother to drive the car around while he threatened her physically and verbally. After the incident, father fled and evaded arrest for several months.

Immediately after the assault, grandfather stopped by mother’s residence, where he had very rarely visited in the past. In the conversation that ensued, grandfather indirectly [484]*484blamed mother for the assault committed by father and was upset with mother that child had not been changed or fed during the day of the attack. Soon after the attack, grandmother allegedly told a police officer that mother deserved what happened to her. Grandparents and other family members were involved in the achieving of father’s eventual arrest by providing information to the police about calls that they received from him.

Since the assault, child has been in mother’s sole custody and has had no contact with grandparents. Because of the threats made against mother’s safety by father, mother has assumed a new name and identity, and she testified in the proceedings below by telephone. Also, mother has remarried. Father is scheduled to be incarcerated until 2006, but he has petitioned the trial court separately for parenting time with child.

Grandparents petitioned the trial court pursuant to ORS 109.121 for an order allowing visitation between themselves and child, who is now six years old. At the hearing on the petition, mother argued that no visitation could be effectuated safely and without jeopardizing her efforts to relocate and protect herself from father. The trial court found that

“the grandparents had developed a significant relationship with their grandson, particularly during the first year of his life. * * * [G]randparents have not been allowed any contact with their grandson since at least November, 1996. [I]t is in the best interests of [child] and his grandparents that visitation be allowed.”

It ordered extensive, unsupervised visitation by grandparents. They were awarded the right to visit with child one weekend every other month, two weeks during the first summer and four weeks during the following summer. The court also ordered four days of visitation during each Christmas holiday. Once child begins school, the visitation order awards grandparents four three-day weekends, four weeks in the summer, four days over Christmas and one half of the spring vacation. The order also requires mother to give grandparents her phone number and to take child to a location halfway between mother’s residence and grandparent’s residence [485]*485for each visit. Grandparents are ordered not to allow any contact between child and father and to use their best efforts not to allow father to learn the location of mother and child.

On appeal, mother contends that the trial court exercised its authority erroneously under ORS 109.121 when it granted visitation to grandparents.1 She argues that they have not been denied reasonable opportunities to visit with child within the meaning of the statute, because there is no safe way for visitation to occur. Alternately, she argues that although grandparents may have had a meaningful relationship in the past with child, it would not be in the child’s current or future best interests to have visitation occur at this time. She contends that child associates grandparents with the trauma of father’s assault and kidnaping of her and that he would therefore be traumatized by future contact with them, that grandparents have enabled father’s abusive tendencies in the past, and that disclosing her new location and identity to them would jeopardize mother’s physical safety and child’s emotional well being.

ORS 109.121 provides, in part:

“(l)(a) A child’s grandparent may, upon petition to the circuit court, be granted an order establishing reasonable rights of visitation between the grandparent and the child if:
“(A) the grandparent has established or has attempted to establish ongoing personal contact with the child; and
“(B) the custodian of the child has denied the grandparent reasonable opportunity to visit the child.
céjí: ‡ ‡ ‡ ‡
“(5) Any order creating visitation rights under this section shall be according to the court’s best judgment of the [486]*486facts of the case and shall include such conditions and limitations as it deems reasonable. In making or modifying such an order, the court shall be guided by the best interests and welfare of the child.”

We refrain from making a determination of whether mother’s denial of visitation between grandparents and child was unreasonable, because the evidence persuades us that mother’s second contention is dispositive — that grandparent visitation is not in child’s current best interests. To be granted visitation with a grandchild under ORS 109.121(1), a grandparent must show that the child would be benefitted by the visitation. Showing that the child would not be harmed by visitation is insufficient. It is also insufficient to rely on an argument that, in general, children are always benefitted by contact with their grandparents. Vegas v. Brumfield,

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Related

Ring v. Jensen
20 P.3d 205 (Court of Appeals of Oregon, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
13 P.3d 152, 170 Or. App. 480, 2000 Ore. App. LEXIS 1721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gatliff-v-sisson-orctapp-2000.