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Ian J. v. Peter M.

January 29, 2013

IAN J.*FN1 ET AL., PLAINTIFFS AND RESPONDENTS,
v.
PETER M., DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of San Diego County, Jeannie Lowe, Judge. (Super. Ct. No. DN146808)

The opinion of the court was delivered by: Benke, J.

CERTIFIED FOR PUBLICATION

Reversed.

In this contentious dispute over grandparent visitation, the family court entered an order which improperly invades appellant's constitutionally protected right to determine who and under what circumstances individuals may have contact with his daughters, who are now 13 and nine years old.

As we read the cases which have discussed a parent's constitutional right to limit grandparent visitation, appellant was not required to prove his former father-in-law was guilty of misconduct or was more likely than not to harm appellant's daughters. Rather, because a parent is ultimately responsible for the well-being of a child, and a fit parent is presumed to make decisions in his or her child's best interest, the grandparents in this case were required to show clear and convincing evidence that, notwithstanding appellant's objection, extended unsupervised visitation with them was in the children's best interest. The grandparents failed to meet that burden and the family court therefore erred in ordering visitation under Family Code*fn2 section 3102.

As we explain, the record contains a number of diary entries made by the girls' deceased mother in which she accuses her father, the girls' maternal grandfather, of raping her when she was a child and of other inappropriate behavior. The diary entries were made while the mother was being treated for an eating disorder and an emotional illness. In other diary entries the mother recanted the accusations. The record also provides uncontroverted evidence the two young girls who are the subject of this appeal are very uncomfortable in the presence of their maternal grandfather, have made specific complaints about what they believe is inappropriate behavior on his part, and at this point are adamantly opposed to visiting him.

The record also contains the assessment of a court-appointed psychosexual evaluator. The evaluator stated that upon initially reviewing the mother's diary he found the accusations therein credible. The evaluator also performed a test, which places the grandfather in a borderline range between men who are pedophiles and men with normal sexual desires. Although suggested by an expert retained by appellant, the court-appointed evaluator did not perform any phallometry, which measures penile response to various stimuli. Notwithstanding the credibility the evaluator initially found in the diary accusations and the ambiguous psychosexual test results, based on interviews with other members of the family and the grandfather, the evaluator concluded the grandfather did not pose a substantial risk to his granddaughters.

Given this record, appellant's concerns about permitting the grandfather to have unsupervised visits with his daughters are legitimate. The girls' discomfort in the presence of their grandfather alone supports a parent's vigorous intervention on their behalf. Thus, the family court's order, which requires extended unsupervised visitation with the maternal grandfather, must be reversed.

As we explain, because of conflict between appellant and his former in-laws, because of the lengthy litigation which has already taken place, and because of the opposition of the girls to visit their grandfather, no further proceedings on remand are appropriate.*fn3

FACTUAL AND PROCEDURAL BACKGROUND

1. Linda

a. Diary Entries

Linda M. (Linda) was born in South Africa in 1968. Her parents Ian J. (Ian) and Jane J. (Jane) are respondents herein, as is her sister Ann T. (Ann). Ian and Jane have a third child, Richard. Ian was a very successful investment fund manager in South Africa and the family experienced a fairly luxurious standard of living, including a great deal of domestic support.

In 1989 Ian moved the family to the United States where he continued his successful career. The family initially settled in New York; however, they did not enjoy as quite as high a standard of living there and, according to Ian, Linda experienced a great deal of difficulty in making the transition to life in this country.

From March 1993 until September 1995, Linda was treated on an outpatient basis for an eating disorder and a borderline personality disorder. In an initial evaluation and discharge summary at the clinic where Linda was treated she complained of "a significant history of sexual abuse." The summary notes a "history of incest with father, ages 6 - 14/15." A therapist note also indicated Linda was attending "an incest survivor's group" along with her individual and group treatment at the clinic.

While receiving treatment for her eating disorder, Linda made a number of diary and journal entries which, after her death, came to light. In her journals and writings during the years she was in treatment Linda stated:

"04/02/93 When I told her [Jane] about my father she said: He was probably drunk; and he didn't mean it. It's the only way he can show you that he loves you.

"04/09/93 I am part of this group and an incest group.

"04/10/93 I'm starting an incest group on 4/20. Until January I thought all fathers raped their daughters and all mothers hated them for it.

"04/15/93 The only people I have told about 'the issue' are therapists. I mean, what is the big deal--he raped me. It's just hands and penis and body. The definition of a bitch is anyone with a vagina and an attitude. How could I tell him to stop? No one cared. They saw--but I was told (whenever I did cry) to stop disturbing everything; to stop making a scene and causing trouble. I was the difficult child: the one most likely to say and do the wrong thing. You want to know what the correlation between sexual abuse and bulimia is . . . we're trying to rid ourselves of everything inside.

"04/30/93 I think I made it all up. I'm a liar, and so filthy. Where did all my fear come from? I must be psychotic. I'm an attention seeker so desperate for attention that I go around telling wicked lies about my parents.

"05/02/93 I'm such a loser. I'm so disgusting. I can't relate to people. I hurt them. I'm dishonest. I lie ALL THE TIME. I can't tell what is real any more.

"05/02/93 Why have I made up all these lies? Why am I hurting my parents, my sister, my friends. Myself?

"05/03/93 I think I'm going to stop my incest group. Want to get on with my life. Do you think that's wise? I can't distinguish between avoidance and protecting myself. How do you tell? Do you think it's possible I made the whole thing up to justify my pain?

"05/08/93 There is so much buried--what happened to me when I was littler. What did the people everyone loves and respects do to me--all in the name of love. I think I'm getting to a point of being able to confront my father. I told my mother about the incest group on Thursday."

In an undated letter to Jane, Linda wrote: "When I was 7 my father raped me," but provided no further information.

b. San Diego

In 1995 Linda moved to San Diego. Shortly after moving to California, in an essay she wrote for admission to graduate school in psychology, Linda wrote: "When I was a little girl, my father would come into my room at night and kiss me all over my face, at times sticking his tongue in to my mouth, always pulling closer and laughing as I fought him, tried to hide, to pull away . . . . My mother is a perfect match for my father. He is overly close, controlling, and megalomaniacal. She is distant, passive, and icy-cold. With my father, I was able to separate myself from my body. . . . When I begged my mother, at twelve years old, to ask my father to stop kissing me, I believed her when she said that I was crazy and hysterical. When I told her again just three years ago, I did not believe her when she said: 'That's the South African way, Linda, every man did that,' and 'Oh, he was probably drunk.' "

Linda's sister, Ann, confirmed some aspects of Linda's accusations about Ian's behavior but questioned the reality of Linda's more serious complaints. Ann confirmed that Ian kissed her on the lips just as, according to Linda, he had kissed Linda; Ann told Ian to stop kissing her on her lips when she was in her 20's. According to Ann, Linda also wrote a novel, which included a character who had been molested by her father. The book caused an argument between Linda and Ann. Ann believed it was a break from reality.

In declarations submitted in support of her request for visitation for herself and her parents, Ann stated in fairly categorical terms that Linda had never told her about being molested. However, in her interview with the court's psychosexual evaluator, when confronted with the fact Linda had told others about being molested, Ann responded by making the following statement: "She was attention-seeking. It was never enough for her, she was never good enough. She would get really depressed sometimes. She battled a lot of stuff. She would tell random people different stories. I knew she would say things. (Did she ever tell you she was molested?) She would tell me, but the stories would change, and then later she would deny it. Her reality would shift so much, I wondered about my own. (What did she say to you?) She said our father would kiss her, rub her legs while she was sleeping. He did this to me, too. I would tell her to tell him to stop, but she never wanted to do anything. (Anything else?) There were never any specifics. We would have fights about her inconsistencies. (Like what?) The first time was around the time Linda wrote her book. She asked me to edit it. She seemed to have breaks from reality. She'd make stuff up."

Linda also shared her novel with her uncle's wife. The uncle's wife asked Linda "if she was trying to tell [her] something and her answer was yes, but to please keep it to [herself]."

c. Marriage

After Linda moved to San Diego she met appellant Peter M. (Peter). Linda and Peter were married in 1997. According to Peter, although he was aware of conflict between Linda and her father, Linda never told him she had been molested.

When Linda became pregnant with her first child she asked Ian and Jane to move to San Diego so that Jane could help care for the baby. Ian and Jane agreed and moved to a home near Linda and Peter.

Linda gave birth to her first daughter, Susan, in 1999. From the time of Susan's birth, Jane was the principal daytime caregiver because Linda and Peter were both working establishing a posture therapy business. Both Ian and Ann assisted in taking care of Susan.

Although Linda, Peter, and Susan spent a good deal of time with Linda's parents and Ann after Susan was born, the record nonetheless reflects that Linda had not resolved all of her feelings toward her father. On January 25, 2002, shortly before Susan's third birthday, Linda wrote in a diary: "It was not mentioned that it was not OK to walk naked into your daughter's room and pin her hands together while you kissed her. It was not mentioned that it was not OK to walk into her room and stare at her while she was dressing."

In 2003 Linda gave birth to a second daughter, Nancy. Jane took care of both Susan and Nancy while Linda and Peter worked in their business.

Following Nancy's birth Linda experienced further emotional difficulty and was treated by a psychologist, Dan Gallant, Ph.D. Gallant later reported that in group therapy sessions Linda attended in 2004 and 2005, Linda "disclosed that some of her present emotional problems were related to having been incestuously molested by her father during her childhood." Gallant found Linda's accusations credible but did not file a child abuse report while Linda was in treatment with him.

Linda also disclosed her molestation claims to Bob Short, who described himself as a facilitator and coach. Short stated: "Linda conveyed to me in private sessions that her father on numerous occasions had sexually molested her in their home in South Africa where she grew up. She said also that her sister Ann was a victim of similar acts but not to the degree she had experienced. Linda said that she had told her mother about what her father had done, ...


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