Rivers v. Gadwah

Rivers v. Gadwah  (95-531); 165 Vt 568; 679 A.2d 891

[Opinion Filed 01-May-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-531

                              MAY TERM, 1996

Leora Rivers and David Rivers        }     APPEALED FROM:
				     }
				     }
     v.                              }     Caledonia Family Court
				     }
Bonnie Gadwah and Vern Gadwah        }     DOCKET NOS. F122-7-95CaFa &
				     }                 198-8-95Cadm

       In the above-entitled cause, the Clerk will enter:

       Appellant Leora Rivers brought a relief-from-abuse petition against
  her mother, appellee Bonnie Gadwah, alleging that Gadwah had threatened her
  after Rivers stopped employing Gadwah as her son Alex's babysitter.  The
  trial court continued the initial hearing on the abuse petition to permit
  Gadwah and her husband to file a petition for grandparent visitation.  The
  Rivers moved to dismiss the visitation petition on jurisdictional grounds,
  but the court denied the motion to dismiss and held a consolidated hearing
  on the two actions.  Following the hearing, the court issued a mutual
  relief-from-abuse order against both Rivers and Gadwah, and also ordered
  that the Gadwahs have supervised visitation with Alex two days a month. 
  The Rivers appeal from the visitation order, again arguing that the court
  lacked jurisdiction to hear the petition for grandparent visitation.  We
  agree, and accordingly vacate the court's visitation order.  15 V.S.A. §
  1012 permits a grandparent to commence an action for visitation only where
  "a parent of a minor child is deceased, physically or mentally incapable of
  making a decision or has abandoned the child."  None of these circumstances
  is present here.  Nor is 15 V.S.A. § 1011(a) applicable here. Although it
  permits a "superior, juvenile or probate court which has considered or is
  considering the custody or visitation of a minor child" to award visitation
  rights to a grandparent, custody or visitation of the minor child was not
  at issue in the relief-from-abuse action between Rivers and Gadwah.  The
  mere fact that the Gadwahs raised the issue of grandparent visitation was
  not sufficient to trigger jurisdiction; such a construction would render
  meaningless the jurisdictional restrictions imposed by 15 V.S.A. §§ 1011 &
  1012.

       The family court's order for grandparent visitation is vacated, and
  the petition for grandparent visitation is dismissed.

     BY THE COURT:


     __________________________________________
     Frederic W. Allen, Chief Justice

     __________________________________________
     Ernest W. Gibson III, Associate Justice

     __________________________________________
     John A. Dooley, Associate Justice

     __________________________________________
     James L. Morse, Associate Justice

     __________________________________________
     Denise R. Johnson, Associate Justice