Williams v. Williams

2002 NMCA 074, 50 P.3d 194, 132 N.M. 445
CourtNew Mexico Court of Appeals
DecidedMay 31, 2002
Docket22,349
StatusPublished
Cited by15 cases

This text of 2002 NMCA 074 (Williams v. Williams) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Williams, 2002 NMCA 074, 50 P.3d 194, 132 N.M. 445 (N.M. Ct. App. 2002).

Opinion

OPINION

BOSSON, Chief Judge.

{1} Parents of a minor child appeal a district court order granting visitation rights to the paternal grandparents over the parents’ objection. See Grandparent’s Visitation Privileges Act (“GVA”), NMSA1978, § 40-9-1 to — 4 (1993, as amended through 1999). On appeal, the parents rely extensively on the recent opinion of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), which affords us our first opportunity to consider that opinion in light of New Mexico law. We conclude that the district court acted in a manner consistent with Troxel, and therefore we affirm.

BACKGROUND

{2} The minor child (“Child”) was born in New Hampshire in 1989. Child’s father (“Father”) and mother (“Mother”) (collectively “Parents”) divorced in 1990. While Mother remained in New Hampshire, Father took Child to live with his parents (“Grandparents”) in Clovis, New Mexico. Thereafter, Father and Child resided in Grandparents’ home until the end of January 2000, except for a period of approximately three years, when Father and Child lived in Phoenix, Arizona. As a result, Grandparents have provided care and support to Child throughout the majority of Child’s life.

{3} Mother had little contact with Child prior to this action. She visited Child only two or three times in ten years, keeping in contact with Child primarily through occasional phone calls and correspondence. Mother has subsequently become more involved in Child’s life.

{4} The relationship between Father and Grandparents began to deteriorate around the time that Father remarried in January 2000. Shortly after Father’s remarriage, Father and Child left Grandparents’ residence and moved in with Father’s new wife (“Wife”) and three of her children. Father and Wife disagreed with Grandparents on various issues related to Child’s upbringing and, consequently, began to curtail Child’s contact with Grandparents. In response, Grandparents petitioned for court-ordered visitation privileges pursuant to the GVA. Mother was not initially made a party to this action.

{5} After a hearing in May 2000, the district court granted Grandparents’ request for visitation with Child. Shortly thereafter, Father and Wife moved, with Child, from New Mexico to Atlanta, Georgia. Because Father would not disclose Child’s whereabouts, Grandparents hired a private investigator to locate Father and Child. Upon Grandparents’ motion, the district court found Father in contempt of court for his violation of the court’s visitation order. A bench warrant issued for Father, who was arrested, extradited to New Mexico, and incarcerated for approximately thirty days, until the district court suspended the contempt sentence to permit Father’s release.

{6} During Father’s incarceration, Mother moved to intervene in the action, and both Father and Mother sought to strike the court’s previous visitation order. Mother also contended that the visitation order was void for lack of notice to her. The court denied the motions, but granted a supplemental hearing to consider Mother’s testimony and to consider any changed circumstances since the previous hearing.

{7} Following a hearing, at which Mother testified telephonically, the district court issued a new order on April 27, 2001, in which it, again, granted visitation privileges to Grandparents. Because Child was then residing in Georgia, the court designated Texarkana, Texas, located approximately halfway between Atlanta and Clovis, as the exchange location for visitation purposes. Father was ordered to transport Child to and from Texarkana for scheduled exchanges every other month, and Grandparents were ordered to reimburse Father for mileage and lodging. Despite the court order, Father failed to bring Child to Texarkana in May of 2001 for a scheduled exchange. Shortly thereafter, Father and Mother filed this appeal challenging Grandparents’ right to court-ordered visitation.

DISCUSSION

{8} Father and Mother argue that the district court violated their rights, under the federal constitution, by (1) failing to give special consideration to their wishes that Child not see Grandparents, and (2) ordering grandparent visitation, despite their opposition, where there was no finding of parental unfitness. Absent a finding of unfitness, Parents argue that the court was constitutionally required to defer to their opinion under the facts of this case. Father and Mother rely heavily on Troxel, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (reversing grandparent visitation that was awarded under Washington’s non-parent visitation statute against the wishes of the parent). This appeal raises questions of law, which we review de novo. See Gabaldon v. Erisa Mortgage Co., 1999-NMSC-039, ¶ 7, 128 N.M. 84, 990 P.2d 197.

Grandparent’s Visitation Privileges Act of Neiv Mexico

{9} The GVA allows grandparents to petition the court for visitation under a limited number of specific circumstances, such as divorce, the death of a parent, or termination of parental rights. See § 40-9-2. The petition in this case was filed pursuant to Section 40-9-2(D) of the GVA, which authorizes grandparent visitation when a minor child has resided with the grandparents for at least six months after the age of six, and the child is subsequently removed from the grandparents’ home. When considering a petition for visitation privileges, the statute requires a court to consider the following factors:

(1) any factors relevant to the best interests of the child;
(2) the prior interaction between the grandparent and the child;
(3) the prior interaction between the grandparent and each parent of the child;
(4) the present relationship between the grandparent and each parent of the child;
(5) time-sharing or visitation arrangements that were in place prior to filing of the petition;
(6) the effect the visitation with the grandparent will have on the child;
(7) if the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect; and
(8)if the grandparent has previously been a full-time caretaker for the child for a significant period.

Section 40-9-2(G). In addition to these statutory factors, this Court has identified other, relevant factors which a court may consider in applying the GVA:

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Bluebook (online)
2002 NMCA 074, 50 P.3d 194, 132 N.M. 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-williams-nmctapp-2002.