Opinion
16-P-1209
04-04-2017
R.H. & another v. J.H.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs (grandparents) appeal from a judgment of the Probate and Family Court dismissing their G. L. c. 119, § 39D, petition for visitation with the child. On appeal, the grandparents contend that the trial judge abused her discretion by denying their petition and by refusing to grant a requested continuance of the trial. We discern no cause to disturb the judgment and affirm, addressing the grandparents' claims in turn.
"[I]n determining whether grandparent visitation should occur, there exists a ‘presumption that a fit parent will act in the best interest of his or her child.’ " Blixt v. Blixt, 437 Mass. 649, 655 (2002), cert. denied, 537 U.S. 1189 (2003), quoting from Troxel v. Granville, 530 U.S. 57, 69 (2000). In order to obtain court-ordered visitation over the objection of the parent(s), the grandparents must rebut this presumption and prove, by a preponderance of the credible evidence, that a denial of visitation is not in the best interests of the child. See id. at 658. "More specifically, to succeed, the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare." Ibid. Here, in her careful findings of fact and conclusions of law, the judge determined that the grandparents did not meet their "burden of rebutting the presumptive validity of the mother's [here, the defendant's] decision to deny visitation." Dearborn v. Deausault, 61 Mass. App. Ct. 234, 237 (2004).
The grandparents make no claim that the judge's findings of fact are clearly erroneous. In her findings, the judge relied on the testimony at trial and the report of the guardian ad litem (GAL). The GAL report included an interview with the child in which he expressed his desire not to see his grandparents. The mother testified that she felt disrespected by the grandparents and that her parenting was undermined. In addition, the grandmother allowed the child to have unsupervised visits with two cousins who had been sexually abused and who had subsequently engaged in sexual activity in front of the child; the grandmother then concealed that information from the mother for more than one year. The judge's assessment of the weight given to the evidence should be accorded substantial deference. Adoption of Peggy, 436 Mass. 690, 702 (2002). Based on her subsidiary findings of fact, the judge concluded that, although a significant preexisting relationship existed between the grandparents and the child, that relationship is currently broken, as is the relationship between the mother and the grandparents.
The grandparents contend that the judge abused her discretion by concluding that the best interests of the child standard did not require grandparent visitation in the present case. See Blixt, 437 Mass. at 658. We disagree. The grandparents did not introduce sufficient credible evidence to prove that a "failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare." Ibid. In short, the grandparents' challenge amounts to a disagreement over the weight accorded certain evidence in comparison to other evidence. The judge carefully considered the evidence under the correct legal standard, and we discern no error of law or abuse of discretion in the judge's ultimate conclusion. See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
The grandparents also claim that the judge abused her discretion by refusing to grant a continuance from the scheduled trial date after the parties' attempts at settlement broke down. There was no abuse of discretion; the judge had advised the parties clearly and explicitly that the trial would proceed as scheduled in the absence of a signed settlement agreement. See Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984). "Whether a case shall be continued or proceed to trial is within the sound discretion of the judge." Ibid. If the grandparents were unprepared for trial based on an expectation that the case would settle to their satisfaction, they took a risk that was unsanctioned by the judge and from which they had no reasonable expectation of relief.
The mother has requested an award of her appellate attorney's fees without citing to any authority. In the absence of any citation to authority, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and in the exercise of our discretion, we deny the request.
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Judgment affirmed.