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)
