Tuesday, October 18, 2011
Man Who Tried to Block Visitation Not Acting in Children’s Best Interests—Court of Appeal
By a MetNews Staff Writer
A Riverside widower who objected to allowing visitation by his former mother-in-law in retaliation for her efforts to obtain guardianship over his daughters, was not entitled to benefit from a constitutionally-established presumption that he was acting in the best interest of the children, the Fourth District Court of Appeal ruled yesterday.
Div. Two explained that a surviving custodial parent’s decisions regarding visitation are entitled to presumptive validity and must be accorded “special weight,” but are not immune from judicial review. In the case of Melville Diedjomahor, the panel said, his refusal to allow visitation by his former mother-in-law “punish[ed] the children for the sins of the grandmother.”
Diedjomahor and Kristen Hoag were married in 2005, and they lived for a period with Hoag’s mother, Shannon Hoag.
The couple had a daughter in 2006, and a second in 2008. Shannon Hoag helped to care for the girls, and she testified that she was “like a third parent.” .
In February 2009, Kristen Hoag filed for divorce, but just over a month later, she died as a result of previously undiagnosed epilepsy. In the immediate aftermath of her death, her children were under the care of her mother, at her brother’s house.
Three months after Kristen Hoag’s death, Shannon Hoag claimed that she told Diedjomahor she intended to file a petition for guardianship of the children. Diedjomahor allegedly responded by demanding she surrender the children, and told her “it was over for [her] as far as any contact was concerned….”
Shannon Hoag filed a guardianship petition on May 5, 2009, in which she alleged Diedjomahor was “unable to care or provide for” the children because “[h]e had an accident that left him temporarily disable[d] from the waist down” and he was an undocumented alien subject to deportation.
Based on Hoag’s allegations, Child Protective Services carried out an investigation but reported “no concern” regarding Diedjomahor’s ability to care for the children. Div. Two also noted Diedjomahor was in the process of obtaining permanent residency at the time of trial before Riverside Superior Court Commissioner J. Michael McCoy.
Diedjomahor, during the trial, conceded that the children loved Hoag and that “she should be allowed to spend time with them….” However he said he objected to visitation because of “an issue of trust,” which Hoag “broke… by pushing me as a parent…claiming my children” and asserting “she raise[d] the children.”
He also expressed concern with the fact that Kristen Hoag’s brother, with whom the children had briefly resided, had admitted ‘improperly touching” Hoag when they were both minors. Diedjomahor also pointed out that Shannon Hoag’s children had been removed from her custody in 1993 due to her drug use.
McCoy granted Hoag’s visitation petition, finding that “it is in the children’s best interests to have visitation with their grandmother.”
He determined “father’s offers of reasonable visitation are feigned at best and without any substance,” as Diedjomahor’s “evidence presented, his demeanor, as well as his answers betrayed his position.”
The judge also ruled Diedjomahor’s purported concerns about the “past history of drug abuse, child neglect, and family sexual abuse” were unreasonable.
Writing for the appellate court, Justice Betty Ann Richli explained that the Supreme Court’s 2000 decision in Troxel v. Granville, 530 U.S. 57, “commands the courts to presume that a surviving parent’s objection to grandparent visitation is in the best interest of the children,” but warned “this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent.”
Richli noted that Diedjomahor “practically admitted on the stand, he objected to visitation mainly to spite the grandparent,” but while “this is a completely understandable reaction…it is not based on the best interest of the children.”
The justice also reasoned that substantial evidence supported the trial court’s findings that the children would be safe with their grandmother since the supposed molestation of Kristen Hoag and drug use by Shannon Hoag were remote in time, and Diedjomahor had admitted visitation would benefit his daughters.
Based on the evidence before the trial court, Richli concluded, the presumption that Diedjomahor was acting in the best interest of his children was “thoroughly overcome,” and “the trial court constitutionally could and did grant the grandparent’s visitation petition.”
Presiding Justice Manuel A. Ramirez and Justice Douglas P. Miller joined Richli in her decision.
The case is Hoag v. Diedjomahor, E050935.
Copyright 2011, Metropolitan News Company