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MacTavish-Thurber v. Gauvin

Supreme Court of Rhode Island

March 13, 2019

Colleen MacTavish-Thurber
Timothy Gauvin.

          Providence County Family Court Associate P 15-188 M Justice John E. McCann, III

          For Plaintiff: Jennifer Hoopis D'Ambra, Esq.

          For Defendant: Joseph E. Marran III, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


          Francis X. Flaherty, Associate Justice.

         The plaintiff, Colleen MacTavish-Thurber, [1] appeals a Family Court order denying a miscellaneous petition filed pursuant to G.L. 1956 §§ 15-5-24.1 and 15-5-24.3 for grandparent visitation with two children of her daughter, who is deceased, and the defendant, Timothy Gauvin. This case came before this Court for oral argument on January 17, 2019, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed on behalf of the parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time without further briefing or argument. For the reasons set forth in this opinion, we affirm the order of the Family Court.


         Facts and Travel

         The plaintiff is the maternal grandmother of two minor children: Danielle, who was born in May 2006, and Adam, who was born in September 2007. The defendant is the biological father of both children, and he was previously married to plaintiff's daughter. The defendant testified that there had been a filing for divorce and he had full custody of the children. However, in December 2010, before the divorce became final, the mother of Danielle and Adam died after she was shot by law enforcement during the course of a bank robbery in Florida.

         In April 2015, plaintiff filed a miscellaneous petition in the Providence County Family Court in which she sought grandparent visitation with her grandchildren, Danielle and Adam. Specifically, her petition averred that for more than thirty days she had made repeated attempts to see her grandchildren, but that defendant had refused her visitation requests. The plaintiff further claimed that, without court intervention, she would not be able to visit her grandchildren and that defendant's refusal to allow her to visit with them was unreasonable. She alleged that it was in the best interests of the grandchildren to allow her to visit with them and that she was a fit and proper person to exercise visitation rights.

         The petition eventually was heard before a justice of the Family Court, and plaintiff, defendant, and defendant's current wife, Sarah Gauvin, all testified. The plaintiff testified that, in September 2010, her daughter separated from defendant, her husband, and left the marital domicile. Because defendant was left with the couple's two children, and due to his work schedule, plaintiff agreed to care for Danielle and Adam on the weekends.[2]

         Danielle and Adam were informed of their mother's death in February 2011, when they were just four and three years old, respectively. According to plaintiff, she and defendant agreed to tell Danielle and Adam that their mother had passed away as a result of a motor vehicle accident because "the children were too young at that time to understand and take on that she was shot in the head and died on the street in Florida." She testified that, as soon as defendant informed her that the children had been told of their mother's death, she dedicated a tree in her backyard to her deceased daughter and sprinkled her daughter's ashes on the tree at a time when Danielle and Adam were present.

         The plaintiff further testified that, beginning in 2012, she was spending less time with Danielle and Adam, and her time with her grandchildren diminished even more when defendant and his current wife, Sarah Gauvin, married. According to plaintiff, she did not have a good relationship with defendant's new wife, and she felt that "there was always resistance."

         The plaintiff testified that in 2015 she saw Danielle and Adam in January, February, and March, but that the March 2015 visit was the last time she saw them.[3] According to plaintiff, defendant contacted her in March 2015 to set up a meeting to discuss behavioral issues that the children were experiencing, but the meeting never occurred.

         The plaintiff also testified that, in March and April 2015, she tried to contact defendant so that she might see the children, but that defendant failed to return her messages. She said that she would leave two to three-and she admitted maybe one time, four-messages per day, two to three times per week. She also testified that her husband may have once left a voicemail message for defendant around 6:00 am. The plaintiff reported that she received one response from defendant, informing her that the children did not want to speak to her, but she nonetheless continued to leave voice and text messages.

         The plaintiff testified that she had no idea why defendant had become angry with her. She further testified that she believed it would be possible to rekindle a relationship with defendant, but that first she had to be reintroduced to the children. She acknowledged that defendant is a good and fit parent for Danielle and Adam.

         The defendant was next to testify. He said that, although plaintiff never babysat the children before their mother's death, she "had [his] side" during the divorce and she put the best interests of the children over her own daughter's interest. The defendant also testified that he waited until February 2011 to inform the children of their mother's passing. He said that his decision in that regard was founded on the fact that the incident resulting in his former wife's death occurred just before Christmas, and he "wanted to make sure that [he] had a period of time that [he] could spend with them" when he was not working and they were not in school or daycare.[4] The defendant testified that plaintiff wanted to inform Danielle and Adam of their mother's death immediately, but that eventually she agreed with his reasoning. Eventually, however, defendant told the children the truth about how their mother had been killed because he "didn't want them thinking that their mother was this fictitious great person that their grandmother was saying she was." The defendant also testified that, at some point, plaintiff had invited him to participate in the sprinkling of her daughter's ashes on the tree in her backyard with the children, but that he did not go because he was working at that time.

         In July or August 2012, defendant began his relationship with the woman who would become Mrs. Gauvin. The couple began living together in November 2012, and they eventually married in August 2013.[5] The defendant testified that plaintiff started spending less time with the children around this time because he and Mrs. Gauvin worked opposite schedules so one of them would always be at home to take care of the children.[6]

         The defendant further testified that, at some point, Danielle and Adam were having behavioral issues at school and at home, and that those issues "always occurred after visits with their grandparents." As a result, Adam began seeing a counselor at school, starting in November 2014, in an effort to address his issues. The defendant also described that, after visiting with plaintiff, the children "would come home with huge bags under their eyes" signaling a lack of sleep, and that sometimes they would come home sick with symptoms such as diarrhea and vomiting.

         Starting in 2014, defendant allowed the children to decide whether or not they wished to visit, not only with plaintiff, but also with his own mother and Mrs. Gauvin's parents.[7] After the March 2015 visit with plaintiff, defendant testified that Adam came home "balling [sic] his eyes out" because plaintiff had shown their mother's ashes to the children that day. Adam told his father that the display of the ashes frightened him. Adam also described to his father what the ashes looked like and how he, Danielle, and plaintiff had sorted through his mother's belongings.

         Furthermore, in that same month, Adam needed to see the school nurse and a physician because he had a pulse rate of 200 beats per minute. Even though Adam had had a history of an elevated heartbeat as an infant, he had not exhibited such symptoms for several years. Additionally, defendant testified that, after the March 2015 visit, Adam would wake up afraid that plaintiff was "coming to get him in the middle of the night[, ]" that he feared being shown the ashes, and that he repeatedly heard a song from a music box that once belonged to his mother. According to defendant, he never had a discussion with plaintiff that gave her permission to show the children their mother's ashes on that day, and displaying their mother's ashes to the children was the "final nail" after several disagreements and arguments about what the children should and should not be doing while they were at plaintiff's home.[8]

         According to defendant, since the March 2015 visit, he prevented plaintiff from visiting with Danielle and Adam because they did not wish to see her. The defendant testified that he believed that showing the mother's ashes to Adam was "incredibly inappropriate" and that it had been mentally damaging to Adam. The defendant also said that, after the last visit, he was barraged with phone calls and voicemail messages from plaintiff and her husband and that he had contacted the police ...

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