In re the Marriage of Amanda D. Craig

• Decision Date: 12 April 2011
• Docket Number: No. 106,537.,106,537.
• Citation: 2011 OK 27,253 P.3d 57
• Parties: In re the Marriage of Amanda D. CRAIG, now Evans, Respondent/Appellant,v.Tony D. CRAIG, and DeWayne and Glenda Craig, Petitioners/Appellees.
• Court: Oklahoma Supreme Court

253 P.3d 57

2011 OK 27

In re the Marriage of Amanda D. CRAIG, now Evans, Respondent/Appellant,

v.Tony D. CRAIG, and DeWayne and Glenda Craig, Petitioners/Appellees.

No. 106,537.

Supreme Court of Oklahoma.

April 12, 2011.

ON CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. 4¶ 0 Paternal grandparents filed a motion in son's divorce proceeding and sought visitation with their grandchild. The Hon. Danita G. Williams, District Judge, LeFlore County, determined that grandparents were not seeking visitation pursuant to a grandparent-visitation statute and granted the requested visitation. Mother appealed and the Court of Civil Appeals, Division No. IV, agreed that a grandparent-visitation statute was not applicable and affirmed the District Court's order awarding visitation. Mother sought certiorari. We hold: (1) A non-custodial non-parent third-party may not use the power of the State to compel a custodial parent to relinquish custody and control over that parent's child and obtain an order compelling visitation without satisfying that person's burden of showing harm or potential harm in the absence of such visitation, (2) A grandparent's rights to court-compelled visitation with a grandchild are statutory, and (3) we expressly overrule Sicking v. Sicking, 2000 OK CIV APP 32, 996 P.2d 471 and Hartness v. Hartness, 1999 OK CIV APP 138, 994 P.2d 1196, to the extent that they allow a grandparent to obtain court-ordered visitation without either the consent of the custodial parent or application of Oklahoma's grandparent-visitation statute, 43 O.S.Supp.2010 § 109.4.CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE DISTRICT COURT REVERSEDGary Briggs, Michael J. Miller, Legal Aid Services of Oklahoma, Inc., Oklahoma City, OK, for Appellant.Ronald H. Lawson, Spiro, Oklahoma, for Appellees.EDMONDSON, J.

¶ 1 The question presented in this case is whether paternal grandparents may obtain a court order compelling visitation with the grandchild without the District Court applying the grandparent-visitation statute. We answer that question in the negative. When grandparents seek a court order to compel visitation with their grandchild and against the consent of a sole custodial parent, a District Court must follow the grandparent-visitation statute.

¶ 2 Tony Craig (Father) left the marital home and his parents (Grandparents) gave assistance to Craig's wife, Amanda Craig, now Evans (Mother), and the child born to Amanda and Tony. Amanda and her child (Grandchild) later changed their residence without notifying Grandparents. Grandparents paid a lawyer to bring a divorce proceeding on behalf of their son, and they sought to determine the location of Mother and Grandchild. Mother returned to Oklahoma and also filed for a divorce.

¶ 3 A final decree of divorce was entered, Mother was awarded custody of the minor child, and Father was granted visitation. However, the visitation was required to be supervised by his parents, the paternal grandparents. The decree provided that no unsupervised visitation or overnight visitation would occur until Father successfully completed a specified counseling program. One year after the divorce decree, Grandparents filed a motion in the divorce case for a court order that would give them the visitation that had been awarded to Father. The trial court held an evidentiary hearing on the motion.

¶ 4 Grandchild was eight years old at the time of the hearing. Grandmother testified that a few times Grandchild stayed overnight with Grandparents on Friday night, and on the following Saturday Grandparents would give Grandchild to a paternal aunt in Ft. Smith to stay at the aunt's home on Saturday night. Mother was upset that Grandparents allowed Grandchild to stay overnight with the paternal aunt without providing notice to Mother or getting permission from Mother. Mother did not want the child to be in Ft. Smith. The strained relationship between Grandmother and Mother broke when Mother refused two of Grandmother's requests: First, that Mother allow the child to attend a meeting at Grandmother's church; Second, that Mother bring the child and Mother's other children to a birthday tea party Grandmother had scheduled for another granddaughter. Grandmother testified that Mother declined to provide further visitation with Grandparents without the presence of the child's father.

¶ 5 Grandmother testified that she tried to get Father (her son) to enforce the visitation provision of the divorce decree, but he did not make any efforts other than making a telephone call to Mother requesting visitation. Grandmother testified that Father did not exercise his visitation rights either before or after the divorce decree. However, she also stated that Father would “occasionally” appear when the child was at Grandparents' home.

¶ 6 Mother wanted to know what activities her child would be involved in when staying with Grandparents. Grandmother testified that she did not know of any requirement that she get Mother's permission before taking the child to activities that Mother disapproved of or inform Mother what activities the child would be participating in, or that she was required to obtain Mother's permission before allowing the child to be in the custody and control of other paternal relatives. Grandmother testified that she once left the Grandchild alone with Father at Father's home for a few minutes while she ran an errand, but that this was a mistake in judgment that would not be repeated.

¶ 7 Grandmother testified that she had once lost her temper in front of Grandchild and called Mother an inappropriate name and made inappropriate comments. This incident occurred when Mother expressed her desire for Grandchild to be returned to her at 4:00 p.m. on a Saturday instead of on Sunday as had been previously allowed by Mother. Grandmother testified that she had wanted to take the child to a church meeting at her church. Mother wanted Grandchild go with her to Mother's church on Sunday, and she wanted her child returned Saturday afternoon. Grandmother testified that she did not understand Mother's conduct because Grandmother's church had a “singing group,” and that Grandmother desired Grandchild to go with Grandparents to “the singing” at her church. Grandmother testified that she later telephoned Mother and apologized for her comments.

¶ 8 Mother testified that she is married. She has one child by her former marriage, Grandchild, and has two additional children with her current husband. She and her husband are employed, and her employment schedule allows her to transport the child to and from her school and normal daily activities. She testified that Grandparents, without giving notice or obtaining permission from her, enrolled Grandchild in certain activities. Mother testified that she told Grandmother that she did not want Grandchild to engage in certain activities when Mother was not present. For example, Mother did not like Grandparents taking the child swimming without Mother's presence. She testified that Grandparents continued to take the child swimming after her request that they stop such conduct. She testified that she did not like Grandparents making, or attempting to make, decisions regarding her child “without even telling me what was going on, I wouldn't even know.” She testified that she did not like the Grandchild–Grandparent relationship because “... how controlling they are and they don't let me know things ahead of time; they tell me after the fact.”

¶ 9 Mother testified that visitation with Grandparents could continue in Mother's presence. She testified that she “offered that they can come and see her [Grandchild] at our house, for birthdays parties, we can meet at the park, anytime they wanted to, but they [Grandparents] want her to themselves without me there for some reason, so they just didn't want that; they didn't accept it.” Mother testified of the incident concerning Grandchild returning to her on a Saturday and not attending Grandparents' church, and stated that it occurred on a weekend that was not a scheduled visitation time. She also testified that during the incident Grandparents placed Grandchild between them in their vehicle and initially would not let Grandchild out of the vehicle to return to Mother when she told her child to leave Grandparents' vehicle and leave with Mother. Mother testified that she did not want Grandchild regularly staying overnight with a paternal aunt because she did not like certain behavior of the paternal aunt's children.

¶ 10 The trial judge questioned Mother and asked her if she did not “believe that there is any room for forgiveness for a mistake if someone agreed that they wouldn't do that again?” In response to the judge's question, Mother explained that Grandparents “continue to do what they think is best instead of even consulting or asking me is this okay. They'll tell me one thing and do another, ....” She testified that Grandmother told her “that as long as ... [Grandchild] is in her [Grandmother's] ‘custody’ she didn't have to tell me anything.” The trial court asked her if she didn't think that requiring Grandparents to come to her home for a visit “would be uncomfortable for them to come ... [because Mother had] a different husband ... and I mean, you're not inviting them [Grandparents] to spend the night.” Mother testified that Grandparents and her husband “get along just fine” and there was no impediment to meeting Grandparents at her home, a park, or another location, as long as Mother was present.

¶ 11 Mother argued that Grandparents failed to meet their burden specified by the grandparent-visitation statute. Grandparents argued that the grandparent-visitation statute was not applicable. Grandparents relied on three appellate opinions. Sicking v. Sicking, 2000 OK CIV APP 32, 996 P.2d 471 (released for publication by order of the Court of Civil Appeals); Hartness v....