K.R. v. B.M.H.

1999 OK 40, 982 P.2d 521, 70 O.B.A.J. 1547, 1999 Okla. LEXIS 49
CourtSupreme Court of Oklahoma
DecidedMay 11, 1999
DocketNo. 89,594
StatusPublished
Cited by23 cases

This text of 1999 OK 40 (K.R. v. B.M.H.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K.R. v. B.M.H., 1999 OK 40, 982 P.2d 521, 70 O.B.A.J. 1547, 1999 Okla. LEXIS 49 (Okla. 1999).

Opinion

HODGES, J.

¶ 1 The issues before this Court are whether the trial court abused its discretion in restricting the paternal grandparent’s visitation and having it coincide with the father’s visitation. We find that the trial court did not abuse its discretion in its award of grand-parental visitation.

I. FACTS

¶ 2 G.M. was born on February 9, 1991, to K.R. and B.M.H., the appellees. The ap-pellees were unmarried college students at the time of G.M.’s birth. Three months after G.M.’s birth, K.R. (father) brought this action to establish his paternity. B.M.H. (mother) was given primary custody with the father given liberal visitation rights.

¶ 3 Because his parents were in school during the first three years of G.M.’s life, his paternal grandparents had primary responsibility for his care at least sixty percent of the time and possibly more based on varying testimony. During the first three years of G.M.’s life and at the time of the hearing, the grandparents’ 36-year-old unmarried son, C.R. (uncle) lived with them and was one of the primary care givers for G.M. when G.M. was in the grandparents’ home. As a care giver to G.M., the uncle changed G.M.’s diapers and bathed him. In addition, due to a shortage of beds in the house, G.M. sometimes slept in the same bed with his uncle.

¶4 When G.M. was three years old, his mother noticed that he obsessively touched his genitals and buttocks. When the mother questioned G.M., he explained that his uncle touched him in that way and that he touched his uncle’s genitals. G.M.’s parents took him to a pediatrician where G.M. repeated to the doctor the allegations regarding the uncle. The pediatrician reported the incident to the Department of Human Services (DHS).

¶ 5 In April, May, and June of 1994, Beth Persac, a licensed marital and family therapist and registered play therapist, although not employed by the DHS, did a therapeutic assessment of G.M by request of the DHS. At two sessions, G.M. told Ms. Persac that his uncle had touched his “wee vee” indicating his genitals. G.M. also stated that G.M. had to touch his uncle’s “wee wee”.. G.M.’s allegations concerning his uncle were confirmed during conversations in which he was shown anatomical drawings.

¶ 6 DHS’ involvement prompted the mother to refuse to allow G.M. to visit his grandparents’ house. Following the change in visitation, the grandparents intervened in this ease by filing an application for grandpa-rental visitation rights. The grandparents asked for distinct visitation rights separate from the father’s.

¶ 7 In the latter part of 1995, G.M., the grandparents, and the uncle were assessed by Dr. Allan Eugene Reynolds, a clinical psychologist. Reynolds found that G.M. was obsessed with ideation, that is play with his genitals and buttocks. Reynolds stated that although there could be other causes, the primary cause of ideation is exposure to improper conduct. G.M.’s inappropriate behavior caused Dr. Reynolds’ concern that abuse may have occurred.

¶ 8 According to Dr. Reynolds, G.M. stated that his uncle had never hurt him or inappropriately touched him. However, Dr. Reynolds admitted that it is not uncommon for children who have been abused to deny that any abuse occurred. There were no other indications during the sessions with Dr. Reynolds that G.M.’s accusations against his uncle were false.

¶ 9 Dr. Reynolds found that it was unlikely that the uncle had molested G.M. although he could not say for certain that the uncle had not acted inappropriately with G.M. Dr. Reynolds did not think that G.M. would be at risk if allowed to visit his uncle without supervision; however, in an effort to ease the mother’s anxiety over the situation, Dr. Reynolds recommended that visits between G.M. and his uncle be supervised.

¶ 10 Dr. Reynolds noted that G.M. and the grandparents had a close relationship. He thought that it would be appropriate for [524]*524the grandparents to have unsupervised visitation with G.M.

¶ 11 Throughout G.M.’s life, his mother and father have worked together to care for G.M. Both attended sessions with the pediatrician, with Beth Persac, and with Dr. Reynolds. They have worked out any problems with visitation between themselves. The mother does not object to G.M. visiting the grandparents. She only objects to G.M. having unsupervised visits with his uncle.

II. DECISIONS OF THE TRIAL COURT AND COURT OF CIVIL APPEALS

¶ 12 After hearing all the evidence, the trial court granted custody to the mother, with visitation to the father. The father was granted visitation with G.M. every other weekend, one evening during the off week, one week in the summer, and alternating holidays. The grandparents were granted access to G.M. as the father would allow during his visitation time. The grandparents were given the right to exercise visitation in the father’s place if he is unable to exercise his visitation.

¶ 13 The trial court identified the uncle as having molested G.M. The uncle was allowed supervised visitation. The trial court ordered that the uncle could not be in the homes of either the father or the grandparents at the same time as G.M. The court also ordered the uncle not to contact G.M. except for the supervised visits.

¶ 14 The grandparents appealed. The grandparents argued that the trial court erred in finding that the uncle had molested G.M. and in denying them unqualified visitation separate from the father’s.

¶ 15 The Court of Civil Appeals found that the trial court did not err in denying the grandparents visitation distinct from the father’s. However, the Court of Civil Appeals found that there was no credible evidence to support a finding that the uncle had molested G.M. and reversed the trial court’s restriction that the uncle have no contact with G.M.

¶ 16 The mother filed a petition for writ of certiorari. In the petition, the mother objects only to the Court of Civil Appeals removing the restriction on the grandparents’ visitation prohibiting contact between the uncle and G.M. This Court granted the petition for writ of certiorari.

III. DISCUSSION

¶ 17 This Court has held that grandparents have no constitutional right to custody of or visitation with their grandchildren. In re Bomgardner, 1985 OK 59, ¶ 3, 711 P.2d 92, 94; In re Application of Grover, 1984 OK 20, ¶ 12, 681 P.2d 81, 82. Grandparent’s rights to visitation are governed by statute and equity. In re Bomgardner, 1985 OK 59, ¶ 3, 711 P.2d 92, 94; In re Application of Grover, 1984 OK 20, ¶ 12, 681 P.2d 81, 82. By analogy, aunts and uncles have no constitutional right to visitation of minor unmarried nieces and nephews. Further no such rights of aunts and uncles are provided by Oklahoma statute. The only challenge to the uncle’s visitation rights preserved for this Court’s review are vis-a-vis the restrictions-on the grandparent’s visitation. Thus, we need not address whether the trial court erred in awarding supervised visitation to the uncle.

¶ 18 The only issues before this Court concern the grandparents’ visitation. Custody and visitation are matters of equity and left to the sound discretion of the trial court. Kahre v. Kahre, 1995 OK 133, ¶ 19, 916 P.2d 1355.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 OK 40, 982 P.2d 521, 70 O.B.A.J. 1547, 1999 Okla. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kr-v-bmh-okla-1999.