Beckham v. O'Brien

• Decision Date: 22 October 1985
• Docket Number: No. 70501,70501
• Citation: 336 S.E.2d 375,176 Ga.App. 518
• Parties: BECKHAM v. O'BRIEN.
• Court: Georgia Court of Appeals

Page 375

336 S.E.2d 375

176 Ga.App. 518

BECKHAM v. O'BRIEN.

No. 70501.

Court of Appeals of Georgia.

Oct. 22, 1985.

Charles L. Wilkinson III, Augusta, for appellant.

J. Richard Dunstan, Augusta, for appellee.

BEASLEY, Judge.

The parties were divorced in 1979. The mother was awarded custody of the minor daughter, and the father was granted visitation privileges.

On October 4, 1984, the father was arrested for molesting his then six-year-old daughter on September 24. The mother thereafter refused to allow the father to visit with the child, and on October 30 the father filed a petition seeking to hold the mother in contempt for failing to comply with the visitation provisions of the divorce decree. On November 6, the father was indicted on the molestation charge for which he had previously been arrested.

The mother moved for continuance of the contempt charge pending the outcome of the father's criminal prosecution and for protection from discovery attempts. On December 13, the court granted the motion; it also ordered that the father "be allowed interim, supervised visitation rights ... at the home of [the father's sister], with the sister being responsible for picking up and delivering the child from the [mother] ..." weekly, with additional visits on the impending Christmas and New Year's Days. The court signed an ex-parte order on December 14 (filed December 17) making explicit that the pickup and delivery was to be at the child's home in Augusta and not elsewhere. The next visit was to be on December 15.

The mother did not make the child available on the fifteenth, and the father again moved for contempt. On January 4, 1985, considering only the new petition, the court found the mother in wilful contempt of its December 13 and 17 orders and ordered that she pay a fine of $200 and allow visitation immediately or face incarceration. We granted the mother's application for discretionary appeal of the December 13 and 17 orders and the January 4 order holding her in contempt, under OCGA § 5-6-35(a)(2).

A modification of child visitation rights is a matter of sound discretion with the trial court and will not be disturbed on appeal absent a showing that the trial court abused its discretion. Gazaway v. Brackett, 241 Ga. 127, 129, 244 S.E.2d 238 (1978); Tirado v. Shelnutt, 159 Ga.App. 624, 626(2), 284 S.E.2d 641 (1981). We reluctantly find such an abuse of discretion in the orders regarding visitation.

The father stands indicted for "fondl[ing] the genitals of" the very child he now seeks to spend time with. The child is the prosecuting witness in the felony case against him. She should not be forced to visit with him before his case comes to trial, any more than any other alleged victim of any crime should be compelled by a court to engage in social visits with the person against whom probable cause has been found that he committed the crime. The court laid great store in the hallowed principle that a person is innocent until proved guilty. It is true beyond question, in the context of the criminal charge which, if proved, could result in a long imprisonment. But it must be recognized that the criminal charge relates to something that has allegedly already happened. If it happened, then the court's demanding visitation would constitute the court as a powerful coercive party compelling the opportunity for the crime to reoccur. A court certainly would not require an adult rape victim to visit an indicted defendant. No more should a child be required to visit the alleged molester just because it is her father and she is a minor and so subject to the court's supervision with respect to custody and visitation rights. The integrity of the criminal law's system of justice and the safety and well-being (psychologically and emotionally as well as physically) of the 6-year-old heavily outweigh the rights of the indicted father to visit with his daughter. It is further aggravated because the visits would be private and could be virtually unsupervised; the sister's only specific obligation was merely to provide transport.

But even if someone were in the presence of the father and child during the visit to be able to verify that no improper acts were committed on the child, harm to the credibility of the child would be nearly inevitable because of the impending trial.

The opportunity for intimidation, coercion and undue influence would be so great that only a rare human being could withstand the temptation to subtly and obliquely influence the child witness. The statute making intimidation a crime (OCGA § 16-10-93) will not protect the child during the visits. It is a sword and not a shield. It will only punish after the damage is done. As for the "deterrent" effect of the criminal statute, its sentence is one to five years, whereas the sentence for a conviction of child molestation, which the father to be visited face, is one to twenty years. OCGA § 16-6-4(b).

In addition, there is evidence that there have already been threats. The mother testified at the contempt hearing that her daughter told her that her father's friend threatened "that if she told, he would steal her, and her daddy told her that he would shoot her baby sister and her mama and her daddy, and he had also said that they would run him out of town if she told on him." The mother's sister-in-law testified that the child had told her that "he [the father] said that he would kill her mommy and her baby sister. His friend said that he would steal her and she would never see them again" and also that "the police would hurt him ... shoot him with their gun ..." She further testified that the child had said "If I tell you, they would send him out of state." Thus, if the above testimony is true, the statute has not been a deterrent.

In addition, the child's psychological and emotional welfare are at stake. The pressures upon her prior to trial will be great in themselves and would be substantially exacerbated by compelled visits. Both the mother and her sister-in-law testified that the child is afraid of her father.

While we recognize that the father has not been convicted of molesting this child, we do not see this case as simply an angry mother pointing accusingly at her ex-husband in order to avoid his visitation rights. The father has been indicted by a grand jury. The role of the grand jury is to determine if "there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities." Beavers v. Henkel, 194 U.S. 73, 84, 24 S.Ct. 605, 607, 48 L.Ed. 882 (1904). For an indictment to be issued under this jurisdiction, the grand jury must be persuaded that there is probable cause to believe the party is guilty. See W. Daniel, Ga. Criminal Trial Practice, § 12-19 (1984). The grand jury has found that the evidence presented was "sufficient to justify putting the party suspected on trial." Barlow v. State, 127 Ga. 58, 60, 56 S.E. 131 (1906) citing Frisbie v. United States, 157 U.S. 160, 163, 15 S.Ct. 586, 587, 39 L.Ed. 657 (1894).

Upon reviewing the record and the transcript of the contempt hearing, we conclude that the trial court abused its discretion in ordering that the father be allowed to exercise visitation rights, albeit "supervised visitation" rights, while...