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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jordan v. Watson (12/8/2017) sp-7213

Jordan v. Watson (12/8/2017) sp-7213, 407 P3d 497

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                        

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                          

           corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                       



CHERYL  JORDAN  and                                                  )  

THOMAS  JORDAN,                                                      )  

                                                                     )     Supreme  Court  No.  S-16500  

                                Appellants,                          )  

                                                                                                                                   

                                                                     )     Superior Court No.  1SI-16-00027 CI  

           v.                                                        )  

                                                                                                

                                                                     )     O P I N I O N  

                                        

CHANDRA WATSON and                                                   )  

                    

WILLIAM JORDAN,                                                                                                    

                                                                     )     No.7213 - December 8, 2017  

                                                                     )  

                                Appellees.                           )  

                                                                     )  



                                                                                                               

                     Appeal from the Superior Court of the State of Alaska, First  

                                                                                          

                     Judicial District, Sitka, David V. George, Judge.  



                                                                                                                       

                     Appearances:  Kara A. Nyquist, Anchorage, for Appellants.  

                                                                                                          

                     James W. McGowan, Sitka, for Appellee Chandra Wilson.  

                                                                                               

                     No appearance by Appellee William Jordan.  



                                                                                                          

                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                           

                     and Carney, Justices.  



                                         

                     CARNEY, Justice.  



I.         INTRODUCTION  



                                                                                                                                   

                     Paternal  grandparents  asked  the  court  to  order  visitation  with  their  



                                                                                                                               

grandson.  The superior court denied their request because they did not allege that the  



                                                                                                                      

child suffered any detriment from a lack of court-ordered visitation.  We affirm.  


----------------------- Page 2-----------------------

 II.                FACTS & PROCEEDINGS               



                                        Cheryl and Thomas Jordan are the grandparents of a young boy.                                                                                                                                      They  



 moved to intervene in a custody dispute between the boy's parents to seek court-ordered                                                                                                                            



 visitation with their grandson.                                                             Neither their motion nor its accompanying affidavits                                                                               



 contained any allegation that the child suffered any detriment from a lack of court-                                                                                                                                                     



 ordered visitation. They                                              alleged only that the child's mother, ChandraWatson,                                                                                                     restricted  



 them to "short visits" with the child, failed to facilitate their relationship with the child,                                                                                                                                             



 and preferred to hire strangers to babysit instead of asking the grandparents to watch                                                                                                                                                   



 him.   Chandra objected to the grandparents' motion.                                                                                                       



                                       The superior court denied the motion, reasoning that the grandparents had                                                                                                                                 



 not alleged any detriment to the child resulting from a lack of court-ordered visitation,                                                                   

                                                                                                                                      1   The grandparents filed a second motion  

 as required by our decision in                                                       Ross v. Bauman.                                                                                                                                   



 making similar arguments; the court rejected it on the same grounds.  The grandparents  

                                                                                                                                                                                                                      



 appeal.  



 III.               DISCUSSION  



                                       The grandparents argue that statutory law and due process required the  

                                                                                                                                                                                                                                                  



 superior court to at least grant them a hearing on their motion. "We use our independent  

                                                                                                                                                                                                                         

judgment to decide whether it was error not to hold an evidentiary hearing."2  

                                                                                                                                                                                                                                      

                                                                                                                                                                                                                            "A hearing  



                                                                                                                                                                                                                                   3  

                                                                                                                                                                                                                                                    

 is not necessary if 'there is no genuine issue of material fact before the court,' "  and we  



                                                                                                                      

 will affirm the superior court's decision to deny a hearing if "the facts alleged, even if  



                    1                   353  P.3d  816,  828-29  (Alaska  2015).  



                    2                  Limeres  v.  Limeres,  367  P.3d  683,  686  (Alaska  2016) (quoting  Routh  v.  



Andreassen ,   19  P.3d  593,  595  (Alaska  2001)).  



                    3                  Hartley  v.  Hartley,  205  P.3d  342,  346-47  (Alaska  2009)  (citing  Routh,   19  



 P.3d   at   596).     See   also   Acevedo   v.   Burley,   944   P.2d   473,   476   n.2   (Alaska   1997)  

 (analogizing  this  standard  to  our  review  of  summary  judgment  decisions).  



                                                                                                                          -2-                                                                                                                7213
  


----------------------- Page 3-----------------------

                                                                                                4  

proved, cannot warrant"granting                       thegrandparentsvisitation.                   "Questionsofdueprocess        

also are reviewed de novo."                  5  



                      Alaska Statute 25.20.065 allows grandparents to seek "reasonable rights of  

                                                                                                                                          



visitation" with a grandchild if they have "established or attempted to establish ongoing  

                                                                                                                               

personal contact with the child" and if visitation is in the child's best interests.6                                           But we  

                                                                                                                                        



held in Ross v. Bauman  that due process requires a third element:   "[A] third party  

                                                                                                                                    



seeking court-ordered visitation with a child, including a grandparent seeking an order  

                                                                                                                                    



under AS 25.20.065, must prove by clear and convincing evidence that it is detrimental  

                                                                                                                          



to the child to limit visitation with the third party to what the child's otherwise fit parents  

                                                                                                                                 

have determined to be reasonable."7  

                                      



                     None of the grandparents' filings before the superior court or this court  

                                                                                                                                    



alleged facts that would constitute detriment; nor have they even acknowledged that a  

              



showing of detriment is necessary under Ross. The facts that they allege, even if proved,  

                                                                                                                                 

cannot warrant the court-ordered visitation that they seek.8  

                                                                                      



                      The grandparents assert that the superior court's ruling deprives them of  

                                                                                                                                         



due process, and maintainthat grandparents ingeneral possessaprotected liberty interest  

                                                                                                                                 



"in the best interests  of their grandchild."   But we held in Ross  that a showing of  

                                                                                                                                         



           4          See  Morino  v.  Swayman,  970  P.2d  426,  428  (Alaska  1999)  (quoting  C.R.B.  



v.  C.C.,  959  P.2d  375,  378  (Alaska  1998))  (applying  this  standard  to  hearing  on  motion  

to  modify  visitation).  



           5         In  re Estate  of Fields, 219 P.3d 995,  1003 (Alaska 2009) (citing S.B. v.  

                                                                                                                                          

State, Dep't  of Health & Soc. Servs., Div.  of Family  & Youth Servs., 61 P.3d  6,  10  

                                                                                                                                        

(Alaska 2002)).  

               



           6          AS 25.20.065(a).  

                             



           7          353 P.3d 816, 828-29 (Alaska 2015) (emphasis added).  

                                                                                                    



           8          See Morino, 970 P.2d at 428.  

                                                               



                                                                    -3-                                                             7213
  


----------------------- Page 4-----------------------

detriment   was   required   -   even   for   grandparents   -   in   order   to   protect   parents'  



                                                                                                   9  

overriding   interests   in   directing   the   upbringing   of   their   children.                                        

                                                                                                       The  balance  of  



                                                                                                                             

interests that due process requires was resolved in favor of the parents, and the result is  



                                                          

the "showing of detriment" test which the grandparents here have failed to even argue  



                 

they could satisfy.  



IV.       CONCLUSION  



                   We AFFIRM the decision of the superior court.  

                                                                                  



          9        Ross,  353  P.3d  at  828-29.  



                                                             -4-                                                          7213  

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