No. 88-109 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE VISITATION OF 

NEOLA B. KANVICK AND JOHN R. KANVICK, 

Petitioners and Appellants, 

-vsDEBRA H. REILLY, 

Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Peter 1,. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Harris & Seidler; Nancy C. Seidler, Billings, Montana 

For Respondent : 

Dunaway, O'Connor & Moe; William J. O'Connor, 11, 

Billings, Montana 

Submitted on Briefs: June 30, 1988 

Decided: August 22, 1988 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Neola B. and John R. Kanvick appeal an order of the 

District Court, Thirteenth Judicial District, Yellowstone 

County, denying their petition for a right to visit their 

granddaughter. 

We affirm. 

The issues on appeal can be framed as follows: 

1. Did the District Court have the authority to 

entertain a petition in a custody action for visitation of a 

grandchild by the natural paternal grandparents? 

2. Did the District Court err when it considered 

evidence of sexual abuse by the natural father? 

3. Did the District Court abuse its discretion in 

concluding that unsupervised visitation by the natural 

paternal grandparents was not in the best interest of the 

grandchild? 

Debra H. Reilly, respondent, and Glenn R. Kanvick, 

appellants1 son, were granted a decree dated March 4, 1983 

dissolving their marriage. During the marriage, they had one 

minor child, K.R., whom the court placed in the mother's 

custody. The mother later remarried. The appellants 

(Kanvicks) enjoyed regular and unsupervised visits with K.R. 

until approximately July, 1985. At that time, the mother 

would only allow visits in her home. 

On January 24, 1986, the Kanvicks filed a petition for 

visitation requesting the court to order that K.R. be allowed 

overnight stays each month and day visits each month and 

holidays. In a separate adoption proceeding brought by 

K.R. ' s new stepfather, Glenn Kanvickl s parental rights were 

terminated and the stepfather was allowed to proceed with his 
adoption of K.R. without the father's consent. The adoption 

was granted May 2, 1986. On February 11, 1987, a hearing was 

held on the Kanvicks' petition. The court denied the 

petition by order dated November 17, 1987. 

The respondent mother has raised the issue of whether 

the District Court had the jurisdiction to adjudicate the 

question of grandparents' visitation rights after K.R. had 

been adopted by her stepfather. This is a question of first 

impression in Montana that must be treated with the utmost 

care and consideration as it involves relationships between 

and the rights of the natural and adopting parents of a 

child. 

The focus here is on the interplay between two statutes. 

The first is 5 40-9-102, MCA, which allows the District Court 

to grant grandparents reasonable visitation. It reads in 

pertinent part: 

(1) Except as provided in subsection (51, the 

district court may grant to a grandparent of a 

child reasonable visitation rights. 

(2) Visitation rights granted under this section 

may be granted only upon a finding by the court, 

after a hearing, that the visitation would be in 

the best interest of the child. 

(5) This section does not apply if the child has 

been adopted by a person other than a stepparent or 

a grandparent. Visitation rights granted under 

this section terminate upon the adoption of the 

child by a person other than a stepparent or a 

grandparent. 

In apparent conflict with the above statute is the 

statute concerning the final effect of an adoption decree, S 

40-8-125, MCA. The relevant section of this statute reads: 

(2) After a final decree of adoption is entered, 

the natural parents and the kindred - of the natural 
parents of the adopted child, unless they are the 

adoptive parents or the spouse of an adoptive 

parent, shall be relieved of all parental 

responsibilities for said child and have no rights 

over such adopted child or to his property by 

descent and distribution. (Emphasis added.) 

We must resolve the apparent conflict between S 40-9-102(2), 

which gives grandparents visitation rights if it is in the 

best interest of the child, and 5 40-8-125(2), which appears 

to abrogate those rights upon adoption. Because this Court 

has not decided this narrow issue we seek guidance from other 

jurisdictions. 

Under the common law, grandparents had no right to visit 

their grandchildren without parental consent. Ex parte 

Bronstein (Ala. 1983), 434 So.2d 780, 782. The majority of 

courts have generally adhered to this rule especially when 

faced with a situation where the child has been adopted. See 

Matter of W.E.G. (Alaska 1985), 710 P.2d 410; In re Adoption of 

Schumacher (111.App. 1983), 458 N.E.2d 94; Bronstein; Mead v. 

Owens (Ga.App. 1979), 254 S.E.2d 431. 

The rationale behind this position is best summed up in 

Schumacher: 

The majority view is persuasive, as there is no 

indication that the Illinois statutory provisions 

for grandparent visitation were intended to 

override the adoption laws.. . . However, as a 

grandparent's status as such is derived from the 

relationship between the child and the natural 

parent (In -- ;e Adoption of Gardiner (Iowa 1980) , 287 

N.W.2d 555; see people-ex rel. Bachleda v. Dean 

(1971), 481 I11.2d 16, 268~.X2d 11) , an adTpt= 

which terminates the rights of the natural parent, 

also removes the basis for the relationship of the 

grandparent and thereby ends the status on which 

the statutory right to visitation rests. (In re 

Adoption of Gardiner (Iowa 1980), 287 N.W.2d555.) 

Further, the mere existence of a statute permitting 

court-ordered grandparent visitation under certain 

circumstances should not be allowed to defeat the 

adoption statute's basic premise of the complete 
severance of ties between the child and the natural 

family. (See 287 N.W.2d 555; Browning - v. Tarwater 

(1974), 215 Kan. 501, 524 P.2d 1135.) Therefore, 

the grandparent visitation provision should be 

construed as subject to the adoption laws, such 

that a completed adoption proceeding supercedes any 

rights which could have been obtained pursuant to 

section 607 (b) of the Illinois Marriage and 

Dissolution of Marriage Act (111.Rev.Stat. 1981, 

ch. 40, par. - 

Gardiner (Iowa 

Tarwater (1974) 

also Bikos v. 

276 N.W.2d 541. 

607 (b) 1, 

1980), 287 , 215 Kan. 

Nobliski (1 

See 

N.W. 

501, 

,979) 

In re Adoption 

,2d 555; Browninq 

524 P.2d 1135: 

- of 

- v. 

see 

While this is the majority view, there are indications 

that even the majority recognizes the harshness that may 

result. Judge Shulman of the Georgia Court of Appeals, 

concurring specially in Mead, stated: 

I must agree with the legal premise set forth in 

the opinion in this case. However, I feel 

compelled to raise a voice in the hope that in a 

more enlightened time, the strong and natural love 

that grandparents have for their grandchildren will 

be recognized to a greater extent and that their 

rights to implement that affection will be legally 

enlarged. 

Similarly, Alabama Supreme Court Justice Shores stated, 

specially concurring in Bronstein: 

I agree that the common law does not recognize, and 

never has, any right of visitation by grandparents. 

I hope, however, that the Legislature will address 

this issue and pass legislation extending to 

grantparents a right to retain and maintain a 

relationship with the children of their children. 

Precious little remains of the family structure, 

which played such a vital part in the development 

of this nation. It seems unconscionable to allow 

its further fragmentation. 
Accordingly, many states are taking a less stringent 

approach in harmonizing their adoption and grandparent 

visitation schemes. 

One of the earliest cases which does this is Mimkon v. 

Ford (N. J. 1975) , 332 A. 2d 199, in which the New Jersey 

Supreme Court held that the grandparent visitation statute 

created an independent action in the grandparents and 

therefore their rights were in no way dependent upon nor 

derived from the natural parent's relationship with the 

child. 332 A.2d at 201-02. By reading the adoption statute 

and visitation statutes in pari materia, the court 

distinguished between situations where the adoptive parents 

were non-relatives or strangers to the child and where the 

adoption was done by a natural parent and step parent couple. 

In the adopting step parent scenario, reasoned the court, 

"the policy of insulating the adoptive child from his natural 

parents is not so clearly compelling as it would be in other 

situations." Mimkon, 332 A.2d at 203. 

Illinois takes a concomitant view: 

In adoptions by a natural parent and that parent's 

new spouse, the policy concern with maximizing the 

pool of adoptive parents is greatly diminished, 

since the act of becoming a stepparent most often 

occurs without regard to adoption and in spite of 

regular visitations between the child and the 

noncustodial natural parent. If an adoption then 

ensues, the rights and obligations of the natural 

parent are terminated to the same degree as in an 

adoption by strangers. Termination of the parental 

relationship is, however, a legal fiction, since no 

act of law can nullify a biological relationship. 

There is no reason to extend that legal fiction to 

include a termination of a grandparental 

relationship unless it is in the child's best 

interest to do so.. . . Absent an adoption of an 

infant by strangers, there is no reason to assume 

from the outset that termination of a grandparental 

relationship is in an adopted child's best 
interest; nor is there any reason to view 

grandparental visitation as an "unnecessary 

intrusion" in the lives of a reconstituted family. 

Lingwall v. Hoener (Ill. 1985), 483 N.E.2d 512, 516. 

This Court finds the reasoning of the Lingwall case 

persuasive and adopts that view. Section 40-9-102, MCA, 

gives a clear indication of intending to differentiate 

between situations where adoption is done by strangers and 

where it is not. Subsection (5) states succinctly that any 

rights obtained under subsection (1) are terminated upon 

adoption of the child by anyone other -- than a stepparent - or 

grandparent, i.e., a stranger or relative further removed 

from the immediate family unit. While Montana law does not 

permit visitation by a natural parent whose child has been 

adopted, Matter of C. P. (Mont. 1986), 717 P.2d 1093, 1095, 

43 St.Rep. 728, 731, we see no clear intent of the 

legislature nor a public policy which mandates a similar 

result for the natural grandparents of that child where the 

adoption is done by a stepparent. Therefore, we hold that 

the District Court had the jurisdiction to adjudicate the 

merits of this matter. Respondents further argument that the 

Kanvicks should have brought their petition in the adoption 

proceeding is without merit as the court in a dissolution has 

broad powers to determine all the problems of dissolution 

including division of property, support, - and custody in which 

the matter of visitation is inherent. See In re Marriage of 

Wilson (1980), 186 Mont. 290, 296, 607 P.2d 539, 542; S 

40-4-208, MCA; 5 40-4-211, MCA; 5 40-4-217, MCA. Having thus 

disposed of the jurisdictional issue, we move on to the 

merits of the Kanvicks' appeal. 

The Kanvicks complain that in its decision the District 

Court relied upon certain intimations that K.R.'s natural 

father had sexually abused her and that these intimations 
were neither proven nor testified to as being accurate. 

Because the father often lived in the grandparents' home, the 

court concluded that the Kanvicks would be unable to protect 

K.R. from her father. 

Evidence of sexual abuse was testified to by a clinical 

psychologist, Dr. Veraldi, who had been treating K.R. The 

psychologist testified to the psychological effects of such 

abuse on a child's sense of security and trust in her current 

custodian. Specifically, the doctor testified as follows: 

Q. What was the purpose of [K.R.] coming to see 

her? A. Her mother brought her in because she 

believed that [K.R. 's] behavior and some of her 

statements indicated that she may have been 

sexually abused. 

Q. Did you talk to [K.R. I about that? A. Yes, I 

did. 

Q. Did you reach an opinion as a result of your 

work with the child? A. During the course of my 

sessions--not immediately, but during the course of 

my sessions, yes, [K. R. 's] behavior indicated some 

concerns about sexual problems, and [K. R. 1 

made--later made statements to me that she had been 

touched in a sexual manner, a manner that made her 

feel uncomfortable by her father. 

No objection was made to these statements. 

Dr. Veraldi was careful to thoroughly discuss the 

psychological harm done to and the resulting needs of a 

sexually abused child. 

THE WITNESS: There are a number of short and 

long-term consequences on the child, but one of the 

most significant is a loss of a sense of security 

and a real fear that something has happened to the 

child and is very upsetting to them, but they can't 

control it. The adults that should be protecting 

them are not protecting them so you have what's 

called a betrayal of trust. This interferes 

gradually on a long-term basis with all 

relationships, because the trust is lost. 
A: One of the most important things that should 

happen when a child discloses abuse is adults who 

have care of that child need to believe that child, 

otherwise the betrayal of trust becomes even more 

serious. It doesn't just pertain, then, to the 

offender, it pertains to all other adults that the 

child should be able to rely on so that to regain 

the trust of a child that says "So and so touched 

me in a way that made me feel uncomfortable," it is 

important that you believe that child. 

Dr. Veraldi testified as an expert witness under Rule 

703, M.R.Evid., which reads: 

The facts or data in a particular case upon which 

an expert bases an opinion or inference may be 

those perceived by or made known to him at or 

before the hearing. If of a type reasonably relied 

upon by experts in a particular field in forming 

opinions or inferences upon the subject, the facts 

or data need not be admissible in evidence. 

Thus, an expert is allowed to rely upon the report and 

opinions of other doctors, Matter of G. S. (Mont. 1985) , 698 

P.2d 406, 409-410, 42 St.Rep. 451, 455, hearsay, Azure v. 

City of Billings (1979) , 182 Mont. 234, 255, 596 P. 2d 460, 

471-472, and those facts she or he has garnered through an 

independent investigation. State v. Hallam (1978), 175 Mont. 

492, 501, 575 P.2d 55, 61. The credibility of the source of 

the opinion goes to its weight and not its admissibility. 

Azure, 596 P.2d at 472. The District Court properly 

considered the doctor's testimony in making its decision. 

Lastly, the Kanvicks assert that the District Court 

abused its discretion in holding that visitation by the 

Kanvicks was not in K.R.'s best interest. 

Section 40-9-102 (2), MCA, allows the court to grant a 

grandparent visitation rights only after a finding that the 

visitation would be in the child's best interest. The 

District Court chose not to allow visitation in this matter 
because the natural father lived with his parents, the 

Kanvicks, a majority of the time and that the Kanvicks were 

not able to ensure that he would not interfere with their 

visits with his daughter. Mr. Kanvick testified that he had 

no plans to restrict his son's comings and goings from the 

Kanvick home. He also testified that his son stays at the 

home between three and seven days a week or "whenever he feels 

like it." Testimonial evidence presented by respondent's 

expert reveals that due to the possibility of sexual abuse 

any contact with K.R.'s father could result in severe 

psychological damage to K. R. We will not reverse the 

District Court absent clearly erroneous findings which result 

in an abuse of discretion. In re Marriage of Goodman (Mont. 

1986), 723 P.2d 219, 220, 43 St.Rep. 1410, 1412; Rule 52 (a) , 

M.R.Civ.P. The District Court did not discount the 

beneficial effects of the Kanvicks ' relationship with their 

grandchild and encouraged K. R. Is mother to continue to allow 

visits in her home. The court, however, did recognize that a 

regular visitation schedule could most likely force K.R. to 

visit her natural father as well. It did not abuse its 

discretion by refusing such a schedule. 

Affirmed. 

Justice 

We Concur: A 

.- 

Chief 'Justice