Steward v. Steward
| Decision Date | 02 March 1995 |
| Docket Number | No. 24563,24563 |
| Citation | 890 P.2d 777,111 Nev. 295 |
| Parties | Gina A. STEWARD, Appellant, v. Allen STEWARD, Sr., and Mary Ann Steward, Respondents. |
| Court | Nevada Supreme Court |
Appellant Gina A. Steward (Gina) and Allen Steward, Jr. (Allen) are divorced, but have joint legal and physical custody of their minor child, Matthew Steward (Matthew). They were in agreement that Allen's parents, respondents Mary Ann Steward and Allen Steward, Sr. (collectively, the Stewards), should not see Matthew. This decision was based on Mary Ann's erratic and abusive behavior towards Gina and Allen, and on instances in which the Stewards failed to properly care for Matthew when he was left with them. Pursuant to NRS 125A.340, the Stewards petitioned for and were granted visitation with Matthew, despite the recommendation of a child custody specialist that no visitation should occur. Gina appeals. For the following reason, we reverse the district court order granting visitation to the Stewards.
On October 6, 1989, Gina and Allen Steward were divorced. Gina and Allen have joint legal and physical custody of their minor child, Matthew. On June 20, 1991, Allen's parents, the Stewards, filed a petition to establish visitation with Matthew, who was three years old at that time. They claimed that Allen and his new girlfriend had been "shutting the grandparents out of contact with Matthew," and that it was in Matthew's best interest to see them.
Gina and Allen each filed an opposition to the petition, asserting that it was not in Matthew's best interest for the Stewards to exercise visitation.
In her affidavit, Gina claimed that the Stewards had shown no love or affection towards Matthew, and that Mary Ann had threatened to take Matthew away from Gina and Allen. Additionally, she stated that Mary Ann tried to break up her and Allen's marriage. Gina described an incident in August of 1988, where Gina and Allen let Mary Ann take Matthew for the night because Mary Ann was threatening to kill herself if they refused. When they called to see how Matthew was doing, Mary Ann yelled obscenities and hung up on them. The next day when the Stewards returned Matthew, he had chocolate ice cream all over his face and his diapers had not been changed all night, giving him a terrible rash. Gina also stated that Mary Ann was a heavy gambler who would stay away from home for two or three days at a time. She claimed that Mary Ann is bringing this action in an attempt to control Allen's life and to hurt her.
Gina's mother and father submitted affidavits in support of Gina's opposition to the Stewards' petition for visitation. Gina's mother stated that Mary Ann has threatened to kill both her husband and her son, and noted that when Gina was pregnant Mary Ann called her a "whore" and told her she hoped she would miscarry. Gina's father, who has known Mary Ann since 1947, described how Mary Ann created problems in his own marriage by falsely convincing his family that he and Mary Ann were having an affair. He feels that Mary Ann is an insane, dangerous, and conniving individual.
In his affidavit, Allen stated that when he had allowed the Stewards to take Matthew overnight in the past, they always returned him at 6:00 or 7:00 in the morning, telling him that they "couldn't take it anymore." Additionally, Allen stated that Mary Ann has a terrible gambling problem and is suicidal and unstable. Allen feels that his parents are trying to "poison [Matthew] against [him]." Allen further stated, "even though my ex-wife Gina and myself had a difficult divorce, we are strongly united in our feelings that Matthew should not have visitation with my parents."
On July 23, 1991, based on these affidavits, a domestic relations referee recommended a temporary restraining order against the Stewards, prohibiting them from having any contact with Matthew except by telephone.
On November 25, 1991, a child custody specialist hired by the district court issued a report. The specialist's report describes Allen's feeling that his mother broke up his relationship with Gina, and was attempting to do the same thing with his current girlfriend, Angelyn. He and Angelyn had moved to California to get away from her, and did not want Mary Ann to know their address.
Allen's sister submitted a letter to the custody specialist describing her mother's terrible gambling problem, and the way in which Mary Ann had alienated all of her family members through her erratic and abusive behavior.
In her conclusion, the child custody specialist described the interaction in the family as dysfunctional and destructive, noting:
The question then for the Court is the extent to which Matthew can, or should, be protected from the dysfunctional relational pattern of the family and whether or not contact with Mary Ann is detrimental to his well-being. There are several factors to be considered. First, although Mary Ann seems to have a relationship with Matthew, the quality of the relationship was not easily determined. It was clear that he was ambivalent about her, and while he was initially enthusiastic about seeing her, he became very uncomfortable as the visit progressed and did not want to stay.
There are also some problems related to Mary Ann's behaviors that could cause difficulty for Matthew. There is the question of the aggressiveness reported by Gina and Allen and that observed by this specialist. While this aggressiveness was not clearly documented as being related to Mary Ann, the findings suggest its possibility given the reports of Matthew being out of control. The question of Mary Ann's gambling is also a factor if Matthew is to be in her care for any extended period of time. Although she insisted that her problem was in the past, the findings show that her problem was severe enough to warrant extensive professional intervention. There were [sic] no indication such intervention has occurred.
The primary problem related to behavior, however, relates to the reported unpredictable outbursts of anger by Mary Ann. The findings show that the outbursts intimidated those who experienced them and suggest they intimidate Matthew, as well. The findings also suggest the strong possibilty [sic] that Matthew would not be excluded from the kind of tale carrying which Mary Ann has acknowledged and which has precipitated many of the family quarrels.
Finally, the question emerges as to how beneficial Matthew's contact with Mary Ann can be, given the strong opposition of both his parents. While Mary Ann may have the right to have contact with her grandchild, both parents' strong opposition should probably be considered given their unity on the matter. Therefore, given the patterns of communication and the inability of family members to take responsibility for their own behavior, it does not appear to be in Matthew's best interest at this time to be exposed to the intra-family conflicts that show no indication of abating.
In response to the domestic relations referee's request for clarification of the conclusions of the report of November 25, 1991, the child custody specialist stated that the "primary recommendation of the study is that visitation not occur."
Pursuant to the Stewards' request, an evidentiary hearing was held at which time Gina and the specialist reiterated their earlier statements. Mary Ann testified that after Allen and Gina's divorce, Allen moved in with the Stewards. She stated that during this time, her son had visitation 50 percent of the time, and that consequently, the Stewards had a lot of contact with Matthew. She said that after Allen moved away from their house and in with Angelyn nine months later, this changed.
Allen testified that the only reason he moved in with his parents was because he could not afford to live on his own right after the divorce. He stated that during the time he and Matthew lived with his parents, he worked a graveyard shift, so that Matthew was sleeping while he was at work. Allen, Sr., watched Matthew when Allen was not able to because Mary Ann "couldn't handle it." Allen stated that when Matthew was sick during this time, Mary Ann told him that it was not her responsibility to watch a sick child. He said that when Angelyn brought over some medicine, Mary Ann refused to administer it. Allen reiterated that he does not love his parents, that he moved to California to get away from them, and that he does not want them to have any contact with Matthew.
The referee found that: (1) the family is dysfunctional and Mary Ann has attempted to control family members; (2) it is highly unusual that even after an acrimonious divorce proceeding, both natural parents would represent a united opposition to one set of grandparents exercising any contact with the minor child; and (3) despite the bitterness between the parties, the Stewards "took in" Allen and the minor child after the divorce and assumed "significant responsibility in raising that minor."
By order dated January 21, 1993, the referee recommended that the Stewards take a parenting course, and that they enroll in counseling specifically addressing the issues raised in this case. The referee further recommended that, at the therapist's discretion, the Stewards should be awarded unsupervised contact with Matthew on a graduated basis, with the ultimate goal being visitation for one Saturday or Sunday per month, one week during summer vacation, two consecutive days during Christmas vacation, and one phone call per week.
Both Gina and Allen filed objections to the referee's report. On March 4, 1994, the district court held a hearing. The district court noted that the referee had heard testimony and was familiar with the case. The court further stated that it believed the grandparents should have visitation, and that it did not find that the referee's...
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