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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-008

Filing Date: December 9, 2009

Docket 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
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{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[.]

. . . .

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
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(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

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 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
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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 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 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.”
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{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 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 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 but to live with
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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 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

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
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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.

CONCLUSION 

{17} 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.

{18} IT IS SO ORDERED.

____________________________________

JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________

MICHAEL E. VIGIL, Judge

____________________________________

TIMOTHY L. GARCIA, Judge

Topic Index for French-Hesch v. French-Williams, No. 29,033

AE APPEAL AND ERROR

AE-RM Remand

AE-SR Standard of Review 

CP CIVIL PROCEDURE

CP-SD Standing

DR DOMESTIC RELATIONS

DR-GR Grandparents

DR-VR Visitation Rights

ST STATUTES

ST-IP Interpretation
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ST-RC Rules of Construction