Marriage of Sepmeier, In re, 88CA1245
Decision Date | 12 October 1989 |
Docket Number | No. 88CA1245,88CA1245 |
Parties | In re the MARRIAGE OF Charles William SEPMEIER, Appellee, and Danny Faye Sepmeier, Appellant. . II |
Court | Colorado Court of Appeals |
Charles William Sepmeier, pro se.
Calvin Lee, Glenwood Springs, for appellant.
Opinion by Judge PLANK.
Danny Faye Sepmeier (mother) appeals the order of the trial court denying her motions for modification of visitation and for appointment of an independent evaluator. We reverse.
The parties were divorced on September 28, 1987. Pursuant to a stipulation, Charles William Sepmeier (father) was granted custody of the minor child, Jessica, then age 9. That stipulation provided in pertinent part:
On July 18, 1988, the mother filed a motion to modify visitation. She requested visitation and counseling at regularly scheduled intervals between herself and her daughter. In an attached affidavit, the mother's therapist stated that the mother had been afforded only one supervised visit with the child since the fall of 1987. She also asserted that the child's therapist had resisted the scheduling of any other supervised visitations.
In his response to the mother's motion, the father attached the affidavit of the child's therapist. That therapist reported emotional regression and a display of severe anxiety and reappearance of nervous habits by the child before and after the one visitation which had occurred. She opined that:
"future visitations should be recommended only where significant evaluations of the mother can provide substantive evidence of her being of a rational state of mind in every respect, and of the mother's ability to provide a healthy role model as a mother and responsible adult, and at such time when the child has progressed to the point that she can process and cope with these visitations in such a manner that they will not effect [sic] her physical and emotional health in any negative manner."
She anticipated that the entire process would take from 2 to 5 years. The trial court denied the motion without a hearing.
The mother first asserts that the court abused its discretion in refusing to grant her a hearing on the motion to modify visitation. We agree.
Visitation is a matter for the trial court to resolve within its sound discretion, taking into account the child's best interests. In re Marriage of Mann, 655 P.2d 814 (Colo.1982). However, that discretion must be exercised consistent with the express public policy entitling a parent to "reasonable visitation" and encouraging "frequent and continuing contact between each parent and the minor children of the marriage," § 14-10-124(1), C.R.S. (1987 Repl.Vol. 6B), unless the court finds that visitation "would endanger the child's physical health or significantly impair his emotional development." Section 14-10-129(1), C.R.S. (1987 Repl.Vol. 6B); In re Marriage of Velasquez, 773 P.2d 635 (Colo.App.1989).
In 1987, the General Assembly expressly declared that it is the child's right to have determinations of custody based on his or her best interests. Section 14-10-123.4, C.R.S. (1987 Repl.Vol. 6B). Visitation is a part of the determination of custody. See § 14-13-103(2), C.R.S. (1987 Repl.Vol. 3B) ( ); § 14-10-127(1)(a)(I), C.R.S. (1988 Cum.Supp.) (in all "custody proceedings" a report concerning custodial or visitation arrangements may be requested); In re Marriage of McGee, 44 Colo.App. 330, 613 P.2d 348 (1980).
It is the well-being of the child, rather than reward or punishment of a parent, that must guide every aspect of a custody determination including visitation. In re Marriage of McGee, supra. Therefore, even a parent who has been found to be unfit to be a custodial parent may be entitled to liberal visitation rights. In re Marriage of Jarman, 752 P.2d 1068 (Colo.App.1988). But cf. § 14-10-129, C.R.S. (1989 Cum.Supp.) (non-custodial parent convicted of certain crimes has burden of showing visitation is in child's best interest.)
Here, the stipulation regarding custody and visitation was entered into because of allegations that the child had been abused by her mother. Nevertheless, a custody evaluation report, dated August 27, 1987, indicated that although the child "disliked some of her mother's behavior," it was apparent that It also concluded that: "Jessica's mother does have the capacity to offer much to Jessica's healthy development ... she can contribute a great deal to Jessica in a non-custodial parent role."
A second report recommended brief supervised visits until the mother reached the point of accepting responsibility for the abuse. A third report concluded from interactional evaluations that the child was not fearful of her mother but, rather, gained much nurturing from the contact with her and longed to end the confusion she felt concerning her mother's parenting. It...
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