December 09, 2009 – Karin French-Hesch v. Kealy French-Williams, No. 29,033

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: December 9, 2009
NO. 29,033
KARIN FRENCH-HESCH,
Petitioner-Appellant,
v.
KEALY FRENCH-WILLIAMS,
Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
John F. Davis, District Judge
Stephen P. Eaton
Albuquerque, NM
for Appellant
L. Helen Bennett, P.C.
L. Helen Bennett
Albuquerque, NM
for Appellee

OPINION
SUTIN, Judge.
{1} 	The district court ruled that a maternal grandmother lacked standing under the
Grandparent Visitation Privileges Act, NMSA 1978, §§ 40-9-1 to -4 (1993, as
amended through 1999) (the Act), to seek reasonable visitation with her grandson.
Grandmother appeals. We reverse and remand for further proceedings.
BACKGROUND
{2} 	Pursuant to the Act, Karin French-Hesch (Grandmother), Jerry Hesch, and
Curtis McMurtrey filed a petition in district court in October 2007 naming Kealy
French-Williams (Mother) as Respondent requesting visitation with Deveron French
(Child), Grandmother’s grandson, who was born in March 1996. Messrs. Hesch and
McMurtrey were soon dismissed as parties and are not involved in this appeal.
Mother answered, asserting that Grandmother could not meet threshold requirements
for visitation under Section 40-9-2(C) of the Act. 	The district court held an
evidentiary hearing to determine whether a factual basis exists for the court to exercise
jurisdiction under the Act. The court addressed the interpretation and application of
Subsections (C) and (G) of Section 40-9-2. These subsections read as follows:
C. 	If a minor child resided with a grandparent for a period of
at least three months and the child was less than six years of age at the
beginning of the three-month period and the child was subsequently
removed from the grandparent’s home by the child’s parent or any other
person, the grandparent may petition the district court for visitation
privileges with respect to the child[.]

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. . . .
G. 	When considering a grandparent’s petition for visitation
privileges with a child, the district court shall assess:
(1) 	any factors relevant to the best interests of the child;
(2) 	the prior interaction between the grandparent and the
child;
(3) 	the prior interaction between the grandparent and
each parent of the child;
(4) 	the present relationship between the grandparent and
each parent of the child;
(5) 	time-sharing or visitation arrangements that were in
place prior to the filing of the petition;
(6) 	the effect the visitation with the grandparent will have
on the child;
(7) 	if the grandparent has any prior convictions for
physical, emotional or sexual abuse or neglect; and
(8) 	if the grandparent has previously been a full-time
caretaker for the child for a significant period.
Section 40-9-2(C), (G). The district court ruled that Grandmother lacked standing
under the Act and dismissed her petition.
DISCUSSION
{3} 	The parties agree that under the Act Grandmother must meet the threshold

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requirement of standing under Subsection (C) before the court can proceed on the
merits of the visitation petition under Subsection (G). See Ridenour v. Ridenour, 120
N.M. 352, 354, 356, 901 P.2d 770, 772, 774 (Ct. App. 1995) (stating that once one of
the threshold requirements set out in Section 40-9-2(A) to (F) is met, the district court
is to assess the factors in Section 40-9-2(G) and that “visitation is appropriate only
after grandparents have met one of the threshold factors”).
Standard of Review
{4} 	We review a district court’s findings for substantial evidence and resolve all
disputes of facts and indulge all reasonable inferences in support of the prevailing
party. Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12,
123 N.M. 329, 940 P.2d 177 (filed 1996). We review conclusions of law de novo and
we may draw our own conclusions of law. Edmonds v. Martinez, 2009-NMCA-072,
¶ 8, 146 N.M. 753, 215 P.3d 62, cert. denied, 2009-NMCERT-006, 146 N.M. 733,
215 P.3d 42; Strata Prod. Co. v. Mercury Exploration Co., 121 N.M. 622, 627, 916
P.2d 822, 827 (1996). 	The interpretation of statutes is a question of law that we
review de novo. 	Jacobo v. City of Albuquerque, 2005-NMCA-105, ¶ 4, 138 N.M.
184, 118 P.3d 189.
The District Court’s Determinations
{5} 	The court entered findings of fact and ruled that Grandmother did not have

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standing. 	The district court’s findings were as follows. 	Child was born in March
1996, Mother is his biological mother, and Grandmother is his maternal grandmother.
Grandmother was at the hospital at the time of Child’s birth, and she testified that
someone approached her and identified herself as a social worker. Child’s grandfather
testified that a woman who identified herself as a nurse, doctor, or social worker
indicated there were three possible options concerning Child: (1) the grandparents
could take Child without Mother; (2) the grandparents could take Child and Mother;
or (3) the “state” would take Child. Mother never spoke directly to the woman, but
was told by the grandparents of the choices described by the woman. Mother was not
given the option of leaving the hospital with Child. No evidence was presented to the
court to explain or justify why Mother was not given that option other than a
statement that Mother needed better living conditions. 	Upon release, Mother and
Child lived with the grandparents, during which time Mother was the primary care
giver of Child and Grandparents provided the “roof over their heads.” Mother lived
in Grandmother’s home with Child as a result of Grandmother’s ultimatum shortly
after Child was born.
{6} 	The district court made the following additional findings. Child resided with
Mother in Grandmother’s home from the time of his birth until September 1998. In
September 1998, a domestic disturbance between Mother and Grandmother led to

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Mother leaving Grandmother’s home without Child. 	The testimony was disputed
regarding when Child was returned to Mother, and there was insufficient evidence to
find that Child lived with Grandmother for three months from September 1998 to
December 1998. Under the circumstances of the case, Grandmother lacked standing
under the Act to pursue visitation privileges.
{7} 	The sole issue for us on appeal is whether the district court erred in denying
Grandmother standing. The sole standing requirement with which we are concerned
is that of a three-month residence. 	The issue of removal was not covered in the
district court’s findings, and it is not a ground argued on appeal.
Grandmother’s Arguments on Appeal
{8} 	On appeal, Grandmother argues that reversal is required simply because the
court found that Child had resided with Grandmother for more than three months
when he was less than six years old. In addition, Grandmother argues that the district
court improperly went beyond the elements of Section 40-9-2(C) by considering such
matters as Grandmother’s conduct, Mother’s lack of choice, who Child’s primary
caregiver was, and the factors in Section 40-9-2(G). See Amerada Hess Corp. v. Adee,
106 N.M. 422, 424, 744 P.2d 550, 552 (Ct. App. 1987) (stating that a court cannot
“add a requirement which is not provided for in the statute”). 	Grandmother also
argues that, having done so, the district court also violated principles of statutory

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construction, namely, that the words in a statute are to be given their ordinary meaning
and that the plain language and a literal reading of Subsection (C) shows that the court
is strictly limited to an inquiry as to whether Child resided for at least three months
in Grandmother’s home before age six.
Mother’s Arguments on Appeal
{9} 	In her attempt to pinpoint on which question the case should turn, Mother
appears to focus substantially on the nine-year interval from the point Mother and
Child left Grandmother’s home to the point Grandmother decided to seek visitation
rights in court, on lack of any Grandmother-Child relationship, and on lack of a good
relationship between Grandmother and Mother. Mother sees Grandmother’s petition
as little more than her effort to use the legal system to create a legal relationship of
love and a bond with Child that did not exist or no longer exists. 	Mother also
indicates that this Court is being asked to consider a clash of interests under the Act,
and she suggests that we consider whether the district court can indulge in “overriding
equitable considerations in applying a statutory analysis.”
{10} 	In addition, Mother argues that the district court’s decision is in conformity
with the purposes and intent of the Act and with “the procedure by which the [Act]
may be given force in the best interest of children and families.” Mother describes the
purpose of the Act as being to continue existing relationships between a child and a

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grandparent where the child could be harmed by discontinuing that relationship. She
also states that the statute is to be used as a protective shield in favor of grandparents
and their grandchildren, and not as Grandmother intends, which Mother describes as
a dividing sword to allow a disgruntled grandparent to establish a relationship after
years of lack of contact with the child. 	Mother further frames the question as not
whether a young woman voluntarily sought shelter with her extended family and
thereby obligated herself under the statute, but instead “whether, on the facts of this
case, the roof provided ten years ago confers standing now.”
{11} 	Mother concedes that the court considered “certain factors related to the best
interests of [Child]” and argues that the district court had the authority under the
statute to exercise its reserve of equitable powers in domestic matters: 	to address
intimate family relationships; to consider the best interests of Child, the extent of any
caretaker role on Grandmother’s part, and Grandmother’s conduct and motivations;
and to give consideration of relevant facts beyond the enumerated Subsection (C)
factors, including evaluating the facts under Subsection (G) in deciding the issue of
residence.
Analysis of Issues
{12} 	We read Subsections (C) and (G) of Section 40-9-2 to be separate, distinct
provisions that require separate proof. 	Subsection (C) opens the door for a

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grandparent to seek visitation privileges under the Act upon threshold showings of
residence and removal. 	Once the Subsection (C) door is opened, Subsection (G)
discusses various factors the district court is to assess when considering the merits of
a grandparent’s petition seeking visitation privileges.
{13} 	In regard to Subsection (C), the requirement is that the “minor child resided
with a grandparent for a period of at least three months and the child was less than six
years of age at the beginning of the three-month period.” Section 40-9-2(C). There
are no definitions, conditions, or exceptions in the Act in regard to that residence
requirement. 	We cannot agree with Mother’s request that the district court be
permitted to indulge in overriding equitable considerations in applying a statutory
analysis. Neither Subsection (C), nor any other provision in the Act, nor Ridenour,
permits a court to assess the residency requirement by considering the factors in
Subsection (G) or any evidence outside of the temporal residential and age factors set
out in the subsection. Nor do we see a basis under the facts in the present case on
which the court was permitted to resort to any reserve of equitable powers in
evaluating Child’s residency with Grandmother to determine standing.
{14} 	We understand that the district court did not think the Act should be read to
saddle Mother and Child with a grandparent visitation privilege where Mother was
coerced at Child’s birth into the circumstance in which she had no reasonable choice

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but to live with Child in Grandmother’s home. Along that line, as well, Mother argues
that it would be absurd to permit a grandparent who obtained standing by threat or
duress to force a parent into protracted and expensive litigation over the child’s best
interests. There may be instances in which standing granted under threshold statutory
requirements may be denied when the party relies on his own wrongful conduct to
maintain an action. 	See Kaiser v. Thomson, 55 N.M. 270, 274, 232 P.2d 142, 144
(1951) (“It is a well settled rule of law that a person cannot maintain an action if, in
order to establish his cause of action, he must rely, in whole or in part, on an illegal
or immoral act or transaction to which he is a party, or where he must base his cause
of action, in whole or in part, on a violation by himself of the criminal or penal laws.”
(internal quotation marks and citation omitted)); see also Horjales v. Loeb, 291 So.
2d 92, 93 (Fla. Dist. Ct. App. 1974) (holding that the circuit court had a right to
dismiss the plaintiff’s case on the theory that “[o]ne who engages in a fraudulent
scheme forfeits all right to the prosecution of a [lawsuit]”); Price v. Purdue Pharma
Co., 920 So. 2d 479, 484-85 (Miss. 2006) (denying the plaintiff the right to sue, based
on the policy and principle that “[n]o [c]ourt will lend its aid to a [party] who founds
his cause of action upon an immoral or an illegal act” and stating that the plaintiff’s
“entire claim is wholly rooted in his own transgressions taking place at the time his
alleged injury occurred” (first alteration in original) (internal quotation marks and

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citation omitted)); Hines v. Sullivan, 431 N.Y.S.2d 868, 869 (N.Y. Fam. Ct. 1980)
(denying a putative father the right to sue under the common law maxim that “a
person cannot maintain a cause of action if, in order to establish it, he must rely, in
whole or in part, on an illegal or immoral act or transaction to which he is a party”
(internal quotation marks and citation omitted)). 	However, because of the unique
structure of the Act and the circumstances in this particular case, we are unwilling to
permit an attack on Grandmother’s standing based on the view that Mother was
coerced by threat or duress to live with Child in the Grandmother’s home.
{15} 	The Act is unique in setting out relatively minimal statutory requirements for
standing to seek grandparent visitation privileges, while at the same time granting
discretion in the district court to grant or deny visitation after considering various
circumstances. It seems clear that any inequitable or wrongful conduct on the part of
a grandparent can, and presumably will, be dealt with by the district court in
determining whether the grandparent should be granted visitation privileges. We can
envision circumstances, and those in the present case may well fit within such
circumstances, in which a grandparent’s inequitable or wrongful conduct may not be
sufficient 	in 	the 	district 	court’s 	mind 	to 	preclude 	some 	visitation 	privilege.
Transferring consideration of the conduct from the issue of standing to that of
visitation privilege is, in our view, the better way to deal with the issue. 	See In re

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Custody of C.C.R.S., 872 P.2d 1337, 1342 (Colo. Ct. App. 1993) (“[W]e are
unpersuaded by the argument that a liberalized view of non-parent standing to
commence custody actions will serve to reward persons who obtain physical custody
over children by criminal, fraudulent, or other forms of misconduct. . . . We believe
it unlikely that a trial court would find it in a child’s best interest to award custody to
a person who had obtained physical custody by kidnapping, fraud, or other
overreaching conduct.”), aff’d, 892 P.2d 246 (Colo. 1995). Furthermore, we are hard
pressed to believe, and we see no evidence in the record to show or any finding of fact
to indicate that Mother was in any way forced through threat or duress to continue to
reside in Grandmother’s home with Child for the two-year period Mother and Child
resided there.
{16} 	Nor are we able to affirm the district court’s ruling insofar as it may have been
based on a finding that Mother was the caregiver, with the implicit finding that
Grandmother was not a caregiver or the primary caregiver. 	We see nothing in
Subsection (C) that permits the court to deny standing based on who the primary
caregiver is when a parent and child are living in a grandparent’s home. Caregiving,
as between parent and grandparent, is a factor outside of temporal residential, age, and
removal considerations. We do not see it as a factor to be considered on the issue of
standing.

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CONCLUSION
{ } 	We hold that the district court erred in holding that Grandmother lacked
standing to seek visitation privileges, and we remand to the district court for further
proceedings.
{ } 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
___________________________
MICHAEL E. VIGIL, Judge
___________________________
TIMOTHY L. GARCIA, Judge