1IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

DANIEL RAMOS, Court of Appeal No. E067005

Respondent and Appellant,
v. (Superior Court No. SWD1502498)
HELEN DYER
Petitioner and Respondent

Appeal From an Order

Superior Court of the State of California, County of San Diego
Honorable James T. Warren

RESPONDENT’S BRIEF

JOHN G. McGILL, JR., ESQ. CSB #092858

Law Offices of John G. McGill, Jr.
28459 Old Town Front Street, Ste. 315
Temecula, California 92590
Telephone: 951-699-7037
Attorneys for Petitioner and Respondent,
HELEN DYER
TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................................Page iii

I. STATEMENT OF CASE..................................................................................................Page 2

II. STATEMENT OF APPEALABILITY

.........................................................................................................................Page 2

III. STATEMENT OF FACTS AND PROCEDURAL HISTORY

.........................................................................................................................Page 3

IV. ARGUMENT...............................................................................................................Page 15

VI. CERTIFICATE OF WORD COUNT

.......................................................................................................................Page 21
TABLE OF AUTHORITIES

Page(s)
 I. STATEMENT OF CASE

On October 21, 2015, Helen Dyer, filed a Petition for Grandparent Visitation, along with

a Request for Order for Grandparent Visitation pursuant to Cal. Fam. Code §§3102,1 et. seq. and

31042 et. seq., with Riverside County Superior Court, Family Law Division, Case No.

SWD1502498, requesting an order for Grandparent Visitation with the minor children of her

deceased daughter. After a trial on the matter on August 23, 2016, a Findings and Order After

Hearing3 was entered September 21, 2016 granting visitation of the minor children to Helen

Dyer. Hereinafter, the parties are referred to by their first names.

II. STATEMENT OF APPEALABILITY

This appeal is from the judgment entered September 21, 2105 in the Riverside County

Superior Court is authorized by Code of Civil Procedure § 904.1 (a)(10).

///

////

////

III. STATEMENT OF FACTS AND PROCEDURAL HISTORY

11
Ca. Fam. Code §3102(a). “Visitation rights of close relatives where parents of unemancipated
minor child is deceased. (a) If either parent of an unemancipated minor child is deceased, the
children siblings, parents, and grandparents of the deceased parent may be granted reasonable
visitation with the child during the child’s minority upon a finding that the visitation would be
in the best interest of the minor child.”

22 Ca. Fam. Code §3104(a)(1) “Prerequisite findings for grant of visitation rights to
grandparent (a) finds that there is a preexisting relationship between the grandparent and the
grandchild that has engendered a bond such that visitation is in the best interest of the child.”
33

Page 2
 This is a case of a grandmother, seeking grandparent visitation with her deceased

daughter’s minor children, Destiny Ramos, age 9, date of birth October 14, 2007 and Desiree

Ramos, age 11, date of birth September 21, 2005 (hereinafter referred to as “Minor Children”).

On October 21, 2105, Helen filed a Petition and Request for Order seeking grandparent

visitation with Destiny and Desiree pursuant to Family Code §§3102 and 3104 [CT pp 1, 4, 6].

Helen requested that she and her husband Gary Dyer, be joined as necessary [CT p. 6].

Jennifer Y. Zavala, deceased, and Respondent and Appellant, Daniel Ramos, are the

parents of Destiny and Desiree and are divorced pursuant to Judgement for Dissolution of

Marriage entered April 7, 2014, in the County of Riverside, State of California, Case No.

SWD1400258. [CT p. 1]

Jennifer Zavala the mother of Destiny and Desiree, tragically passed away on June 22,

2015 after a five year battle with breast cancer. [CT pp. 1, 7]

A. Facts as alleged in Helen’s declaration:

We [referring to Helen and Gary] have always been an active part of the girls [referring

to Destiny and Desiree] lives and since the children’s Mother passed away, Daniel withheld the

girls from visiting. [CT p. 2]

Helen was concerned and heartbroken for her two (2) granddaughters, after they lost their

Mother to cancer, on June 22, 2015; Helen sought the right to have regular contact with the

children. [CT p. 7]. The day the children’s Mother passed, Daniel demanded to see the girls and

showed up at Helen and Gary’s home with a Sheriff. Four-five days prior to the children’s

Mother’s funeral services, Helen received a call from the Fallbrook Sheriff’s department,

informing her that Daniel was there and demanding that the police pick up the girls for

counseling and Daniel was upset because the services were taking too long. Helen explained to

Page 3
the officer, that the Court order allowed for the girls to remain with her until after their Mother’s

funeral services. [CT, p. 7].

The Sheriff confirmed he had a copy of the Order in his hand, then told Helen not to

work that Daniel would not bother them prematurely again. [CT, p. 8].

A year and one-half prior to the children’s Mother passing away, Helen and Gary tried to

make sure that Destiny and Desiree has some kind of normal life, by being there for them when

they had school outings, special projects or just wanted someone to be with them while their

Mother was going through cancer treatment. The children’s Mother fought cancer for five (5)

years and was able tot stay at home to be there for the girls. Helen was able to up to 4 days per

week helping Jennifer and the girls, by cooking, cleaning and helping the girls with homework.

[CT, p. 8].

Daniel used the Court system on several occasions to attempt to remove the girls from

Mother’s care , showing no concern for how the girls felt or the best interest of the girls. [CT, p.

8].

During the last few month’s of Mother’s life, her health was declining and she needed

additional help. Helen moved Mother and the children into her home where she provided all the

care and emotional support for the Mother and the children. The girls were placed in school in

Fallbrook, near Helen’s home, to provide the children with as much of a normal family life as

possible. The children loved this arrangement. The children spent time with their Mother,

Helen, Gary and their cousins who attended the same school [CT, p. 8].

Desiree, Destiny and children’s Mother lived in Helen’s home for more than five (5)

months. The children enjoyed their new school and teachers. Helen and Gary share a deep bond

the children. [CT, p. 9].

Page 4
 Two (2) hours after the children’s Mother’s funeral services, Daniel took Desiree and

Destiny. Helen asked Daniel if the children could spend time with their relatives, and Helen and

Gary would deliver the girls to Daniel the next day. With absolutely no compassion for the

grieving children, Daniel “whisked” the children away immediately placing them in an un-

familiar living situation. [CT, p. 9].

Daniel’s act of removing the children from the only family they have known all their

lives and placed them in a different environment and eliminated Helen and Gary from the lives

of the children. Helen allowed time in hopes Daniel would changes his mind and come around

and allow Helen contact with the children, that did not happen. [CT, p. 10]

B. The December 2, 2015 Child Custody Recommending Counseling

Daniel and Helen appeared for Child Custody Recommending Counseling on December

2, 2015. Daniel testifies that at the time of mediation he presented to the Child Custody

Recommending Counselor, the “shared information from the therapist” and filed it with the

Court. [RT, December 15, 2015, p. 4, lines 10-14]. [CMT p. 17].

The Court reviewed the Mediator’s Memoranda filed by Child Custody Recommending

Counselor, Lou Griskey. Lou Griskey, specifically states on Page 2 of the Memorandum dated

December 2, 2015, “In regard to the MATERNAL GRANDMOTHER’S contact with the

children, nothing was disclosed that would indicate that the MATERNAL GRANDMOTHER

has ever harmed the children. More importantly, based on what was shared during the CCRC

session, it appears that the minor children have had positive, long standing relationships with

their Grandmother and other members of their MOTHER’ extended family. [CT, pp. 17-32,

Removed and Sealed] [CMT p. 18].

Page 5
 C. The December 15, 2015 Hearing and initial court orders:

The initial hearing on Helen’s motion for Grandparent Visitation pursuant to Family

Code §§3102 and 3104 was heard on December 15, 2015. The following pleadings were filed

with the Court, prior to the December 15, 2015 hearing. Helen’s Request for Order and

supporting Declaration [CT. pp. 4-10] with no exhibits and Daniel’s Responsive Declaration

filed November 24, 2015 [CT. Pp. 11-16] with no exhibits attached and the Supplemental

Responsive Declaration to Request for Order filed by Daniel with multiple exhibits filed

December 4, 2015 [CT pp. 33-97].

The Court specifically addresses Daniel’s religious concerns with reference to Destiny

and Desiree, in particular Christmas Eve and Christmas Day. [RT, December 15, 2015, p. 13,

lines 1-6]. Daniel testifies “The thing is I have been more than reasonable and willing to work

something out...” [RT dated December 15, 2015 at p. 7 line 15-16]. Daniel further testified

“Your Honor, my religious beliefs to not allow me to celebrate holidays. We do not celebrate

holidays.” [RT dated December 15, 2015 at p. 13, line 7-8].

The Court specifically asked Daniel “So are you willing to let them have time with the

children prior to the 24th?” [RT dated December 15, 2015 at p. 13-14, line 28-1]. Daniel

responded testifying that “Yeah. That’s fine. Like I already mentioned to the Court, if they want

to pick up the children, take them for a few hours, that’s fine.” [RT dated December 15, 2015 at

p. 14, lines2-4]. The Court specifically asked Daniel “Are you willing to let them have the

children on the 24th for a period of time?” [RT dated December 15, 2015 at p. 14, lines10-11].

Daniel testified “For three, four hours, that’s fine....” [RT December 15, 2015, p. 14 lines 12].

The Court discusses a time for Helen and Gary to visit with Destiny and Desiree, suggesting,

Noon to 4:00. [RT dated December 15, 2015, p. 14, lines 10-14]. Daniel indicates to the Court

Page 6
that he would prefer Helen have visitation with the Destiny and Desiree between the hours of

10:00am and 2:00pm on December 24, 2015. Based upon Daniel’s request the Court allowed for

Helen and Gary to take Destiny and Desiree to lunch on December 24, 2015, between the hours

of 10:00am and 2:00 pm. [RT dated December 15, 2015, pp. 14-15, lines 20-4].

Daniel testifies and indicates to the Court his desires with regard to his religious beliefs

and his concerns about Helen and Gary influencing Desiree and Destiny’s religious beliefs. [RT

dated December 15 2015, pp. 15-16, lines 23-3]. The Court specifically asked Daniel “...Do you

have any problem with them [referring to Helen and Gary] giving the children gifts.” Daniel

testified that it was fine for Destiny and Desiree to receive gifts from Helen and Gary. [RT dated

December 15, 2015, p. 16, lines 4-7.

At the end of the hearing, after hearing testimony from the parties the Court ordered, that

neither party is to make derogatory remarks of any type about the other party in the presence of

the children and not to discuss custody, visitation or religious beliefs with the children. Further,

the Court ordered that Daniel sign all necessary releases of information so the children’s

therapist could meet with the grandparents and that Daniel sign the necessary releases so the

Court CCRC counselor could speak to the therapist. [RT dated December 15, 2015 at p. 15 line 6

through p. 17 line 24]. Finally, the Court ordered that the grandparents have at least one (1) visit

with the children for up to four (4) hours once each month. [RT December 15, 2015, p. 18, lines

13-15].

///

///

D. The February 9, 2016 Child Customy Recommending Counseling

Page 7
 A Memorandum was filed with Court on February 9, 2016, indicating, that both parties

were dismissed as mediation was already held on December 2, 2015. The Mediator, Tammie

Chesworth, indicates that she spoke with Daniel by telephone and Daniel agreed to file a

progress report from the children’s therapist. [CT, p. 109, Removed and Sealed]. [CMT, p. 109].

E. The February 25, 2016 Hearing and further Court orders:

Daniel filed a supplemental Responsive Declaration with multiple exhibits on February 8,

2016, once again requesting the Court to deny Helen’s request for grandparent visitation. [CT p.

98, 99, 100]. Daniel asserts in his Declaration that the girls have had contact with Helen every

week and he had recently allowed Helen more than the four (4) hours per month ordered by the

Court on December 15, 2017. Daniel goes on to state that he will continue to make

arrangements with Helen. [CT p. 100].

Daniel filed an additional Supplemental Responsive Declaration with multiple exhibits on

February 16, 2016. [CT p. 110]. Attached as an Exhibit to this Supplemental Responsive

Declaration is correspondence dated November 24, 2015 from Althea Herron, the alleged

therapist for Desiree and Destiny. [CT p. 115]. At the hearing, Counsel for Helen argued that it

would be beneficial to have some input from a therapist, however, the children’s therapist has

never met with either Helen or Gary to be able to make a determination about their relationship.

[RT dated February 25, 2016, p. 9, lines 12-19].

Daniel testifies at this hearing that Helen is visitation with the children over and above

what the Court ordered. [RT February 25 2016, p. 4, lines 9-11, 21-22]. Daniel specifically

testifies stating “I’m not going to take away my children’s desire to spend time with nana.” [RT

February 26, 2016, p. 4, line 26-27. Daniel’s testimony confirms that he is willing to allow the

children to have telephonic with the children. [RT February 25, 2016, p. 8, line 17-23].

Page 8
 At the conclusion of the hearing, the Court set the matter for a review hearing May 26,

2016, so Daniel could provide the Court with further reports from the children’s therapist. The

Court recognizes the animosity between Daniel and Helen caused by the strained relationship

between Daniel and the children’s Mother. [RT dated February 25, 2016, pp. 12-13, lines 27-8.

F. The May 26, 2016 Review Hearing and further court orders:

Counsel for Helen argued that Daniel did not allow Helen to participate in the children’s

therapy, as instructed by the Court. [RT dated May 26, 2016, p. 16, lines 11-14].

Counsel for Helen directs the Court to the Child Custody Recommending Counseling

Memorandum dated December 2, 2015,[CT p. 19-25, Removed and Sealed] [ CMT pp. 17-18]

wherein it discusses the bond between Desiree, Destiny and Helen. [RT dated May 26, 2016, p.

16-17, lines 28-1].

The Court reviewed the letter dated March 16th 2016 from Althea Herron, the children’s

therapist. [RT dated May 26, 2016, p. 18, lines 11-15.]. Counsel for Helen argued that the March

16, 2016, letter from Althea Herron, was absolute hearsay and as such the Court should not rely

on it, the Court agreed with Helen’s Counsel. [RT dated May 26, 2015, p. 19, 6-9]. Counsel for

Helen requested that the parties communicate through a computer program so that all

communications between the parties are kept as a matter of record. [RT dated May 26, 2016, pp.

28-29 lines 28-10]. The Court goes on to discuss this request by Counsel for Helen with Daniel.

[RT dated May 26, 2016, p. 29-30, lines 25-11]. Daniel agreed to allow Helen to choose

between Our Family Wizard and talkingparents.org as the method for all communications

between the parties. Counsel for Helen chose talkingparents.com. [RT dated May 26, 2016, p,

12-24.]

Page 9
 At the conclusion of the hearing, the Court ordered both parties to enroll in

talkingparents.com within ten days and communications then would be through

talkingparents.com. The parties were ordered to check talkingparents.com at least once a day

and all responses should be returned within 24 hours. [RT dated May 26, 2016, p. 30-31, lines

25-7].

Further, since Daniel has failed to provide Helen or the Court with any information from

the children’s therapist, so the Court modified the Order with regard to the children’s therapist,

by rescinding the order that the therapist provide information to Helen and Gary. [RT dated May

26, 2016, p. 31, lines 27-1]. The Court went on to admonish Daniel that the children need to be

in therapy. The Court advised Daniel to place Desiree and Destiny back in therapy and provide

the Court with the name of the therapist. [RT dated May 26, 2016, p. 32, lines 2-12]. All other

previous orders remain in full force and effect, with the exception of the change in therapy order

and the order for Daniel and Helen to communicate with each other using talkingparent.com.

The Court set the matter for trial on August 23, 2016 and August 24, 2016 [RT dated May 26,

2016 pp. 31-33, line 25-28.]

G. Trial of August 23 and August 24, 2016 and further court orders:

On August 23, 2016, the matter was called for Trial on the issue of prove-up by Helen of

a relationship under Family Code §§3102 and 3104. The Court noted that both Helen, with her

Counsel, John McGill and Daniel were present in the courtroom and both parties were sworn in.

[RT dated August 23, 2016, p. 1, line 1-15.]

The Court indicated for the record that prior to the Trial the Court reviewed the initial

Petition, responsive declaration filed by Daniel together with various memorandums and had

attempted to send the parties back to Mediation. [RT dated August 23, 2016, p. 1, lines 16-22]

Page 10
Counsel for Helen argued that the Court could not get a further mediation recommendation

because the mediator was unable to speak with the children’s therapist. [RT dated August 23,

2016, p. 2, lines 3-9] Counsel for Helen reminded the Court that Daniel had failed to get the

children involved with a new therapist, as previously ordered. [RT August 23, 2016, p. 2, lines 9-

13]

Helen’s counsel argued that since July 6, 2016 Daniel denied Helen the Court ordered

telephone communication with the Desiree and Destiny. Helen filed an Affidavit of Contempt

against Daniel for failure to abide by the Court’s order. [RT dated August 23, 2016, p. 2-3, lines

14-23] The Court rejected the Affidavit for Contempt by Helen’s counsel on her behalf for

Daniel’s refusal to abide by the Court order. [RT dated August 23, 2016, p. 3-4, lines 24-8].

Daniel testified that he would only allow Helen to speak to the children he recorded the

conversation. [RT dated August 23, 2016, p. 15-16, line 23-2]

Daniel testified “Over the last month and a half, maybe two months, I have limited the

communication and the visitation has stopped.” [RT dated August 23, 2016, p. 5, lines 15-17]

Daniel further testified that he wanted to record Helen’s phone calls because of the recent history

between him and Helen. The Court admonished Daniel that it was a crime in the State of

California to record someone without their knowledge and should not and cannot be done. [RT

dated August 23, 2016, page 5-6, lines 18-4] Daniel testified that Desiree and Destiny were back

in therapy and that he intentionally failed to provide that information to Counsel for Helen, in

violation of the Court order of May 26, 2016. [RT dated August 23, 2016, p. 6, line 4-22] Daniel

testified that he had knowledge of the Court’s Order of May 26, 2016, to provide Counsel for

Helen the information on the children’s therapist. [RT dated August 23, 2016, p. 6, line 11-13]

Page 11
 The Court went on to admonish Daniel that the consequence for contempt of a Court

order is incarceration for up to five days for each contempt court. Daniel testified that he

understood. [RT dated August 23, 2016, p. 6-7, lines 23-11]

The Court specifically asked Daniel “Let me ask you, Mr. Ramos, would you agree to

allow Mr. Dyer to tape-record the conversations along with you? Daniel testified “Yeah. That’s

no problem.” [RT dated August 23, 2016, p. 19, lines 9-12] The Court went on to as Daniel if the

Court could set a specific time for Helen and Gary to talk to Desiree and Destiny, and the

conversation can be recorded by both parties. Daniel testified that he agreed. [RT dated August

23, 2016, p. 19, lines 13-17] The Court requested Daniel to propose a specific time for the

telephone conversations. Daniel testified that either Tuesday night or Thursday night worked for

him. The Court asked Daniel “How about every Tuesday and Thursday...” and asked Daniel to

suggest the time. Daniel suggested between 7:00 and 8:00. [RT dated August 23, 2016, p. 19,

lines 18-24] Daniel testified that he would initial the call. [RT dated August 23, 2016, p. 20,

line 4] After hearing the testimony from both parties, the Court ordered Daniel to initiate

telephone communication between the children and Helen and Gary every Tuesday and

Thursday between 7:00 and 8:00 and further ordered that both parties are permitted to record the

conversation. [RT dated August 23, 2016, p. 20, lines 5-8] Daniel testified that he understood the

Court orders. Helen testified that she understood the Court orders. [RT dated August 23, 2016,

p. 20, lines 9-12]

The Court reiterated it’s Order for neither party to make derogatory remarks about the

other, the parties are not to discuss custody and visitation or any issues before the Court with the

children. [RT dated August 23, 2016, p. 20, lines 19-23] The Court indicated to Daniel that it

was inclined to order that Helen and Gary would be able to have the children for dinner every

Page 12
other Thursday from 3:00 p.m. to 7:00p.m. The Court specifically asked Daniel if he thought he

could handle that. Daniel testified “Yeah”, indicating that it was not a problem. [RT dated

August 23, 2016, p. 22, lines 17-21] Daniel testified that he would tell the children’s therapist to

try not to schedule the girls on Thursdays, at least on those days that Helen and Gary have dinner

visitation with the children. Daniel testified “That’s fine”. [RT dated August 23, 2016, p. 25,

lines 20-23].

Counsel for Helen prepared a Findings and Order After Hearing which was filed on

September 21, 2016. In that Order, after several hearings and testimony from the parties the

Court granted:

Page 13
• Helen and Gary telephone contact with Desiree and Destiny Tuesdays and Thursdays

between 7 and 8 p.m.;

• Helen and Gary have dinner visitation with Desiree and Destiny every other Thursday

from 3pm to 7 pm; and

• Hel en and Gary are to limit their grief around the children.

The Court set a review hearing for the purposes of a report from the childrens’ therapist

on September 30, 2016, 8:30a.m. in Department H-2. [RT dated August 23, 2016, p. 25, line 24-

25]

///

///

///

///

IV. ARGUMENT

A. Respondent has not denied there is a pre-exiting relationship between Helen and

Desiree and Destiny.

Since commencement of these proceedings, Daniel has not denied that there is a pre-

existing relationship between Desiree and Destiny and the maternal grandmother, Helen and her

husband, Gary. On the contrary, Daniel has raised an objection to the children’s visitation with

Helen based on numerous unfounded allegations. As preliminary matter, the pre-existing

relationship element has not been disputed by Daniel.

B. Current Case Law Shows a Pattern of Visitation Order Based off of the CCRC

Medation Recommendation.
 In review of a number of cases involving grandparent and non-parent visitation, while no

case was specifically on point regarding a requirement that the pre-existing relationship element

first be determined before setting the matter for an evaluation, a clear pattern emerged as to how

visitation orders came into place. The orders for grandparent visitation were the result of parties

attending mediation, the mediator establishing there were facts to support a pre-existing

relationship and/or that visitation would be in the best interest of the children and issued an

visitation recommendation based on said information.

In our case, the parties both attended Child Custody Recommending Counseling on

December 2, 2015. [Confidential Material Transcript]

In re Robert D., the Court held that a visitation order can be given over the natural

parents objection. In the case, the court decided it would be in the best interest of the child to

maintain the grandparent relationship. The court states: “This finding is supported by the

recommendation of the counselor who concluded after interviewing the parties that continuing

grandparent contact would be in [the child’s] best interest.” In re Robert D., (1984) 151 Cal.

App3d 394, 198 Cal.. Rptr. 801.

In Studard v. Studard, the Court ordered visitation after a mediation recommendation.

The “mediator recommended grandparent visitation, explaining it was what the child wanted,

the bond between her and grandparents was ‘quite strong,’ and they were capable of adequately

caring for her.” Studard v. Studard., (2016) 244 Cal.App. 4th 768, 199 Cal. Rptr. 3d 821. The

court in this case held that Family Code 3104 does not violate substantive due process by

granting grandparent visitation over the objection of the parents.

In Fenn v. Sherriff, the parties underwent a psychological evaluation and had visitation

orders pending. The court concluded in this case that “although the fundamental right of parents
to make decisions regarding the care, custody, and control of their children requires the court to

give the decisions of fit parents special weight, it does not necessarily preclude a court from

ordering visitation over the parents’ objections.” Fenn v. Sherriff, (2003) 109 Cal. App. 4th

1470-1471.

In Hoag v. Diedjomahor, the Court made orders for visitation by adopting the mediators

visitation schedule. Hoag v. Diedjomahor (2011) 200 Cal. App. 4th 1008, 132 Ca. Rptr. 3d 256.

All of the above cases resulted in grandparent visitation orders after the parties attended

mediation. Family Code §3170 (a) states that “if it appears on the face of the petition,

application, or other pleadings to obtain or modify a temporary or permanent custody or

visitation order that custody, visitation, or both are contested, the court shall set the contested

issues for mediation.”

In the present case, the matter was appropriately set for mediation. However, there was

no fruitful conclusion fo the mediation in terms of visitation recommendation. The mediator

states “This Recommending Counselor is unable to offer the Court a recommendation in this

matter until the children’s therapist has shared information with the Court as to the children’s

emotional health, and whether or not the children could withstand any fallout from the acrimony

that appears to be increasing between the FATHER and MATERNAL GRANDMOTHER in this

Family Court matter.”

In this case, Daniel was ordered to submit the proper release so that mediator could talk

with the children’s therapist. Daniel failed to provide the information necessary for the mediator

to speak with the children’s therapist.

///

///
///

C. The Presumption that a Parent is Acting in the Best interest of a Child is Overcome

upon a Finding that the Objection to Visitation does Not Arise from a Genuine Concern for

the Children.

Hoag v. Diedjomahor is relevant to the present case before this Court in relation to the

allegations raised by Daniel against Helen as to why visitation should not be granted. In

Diedjomahor, the grandmother but wanted a limited schedule due to her attempts to guardianship

of the minor. Father then objected to visitation all together unless it was severely limited.

The court in Diedjomaho found that the Father’s claimed reasons for denying visitation

were not reasonable nor credible and were done out of a desire to retaliate against the

grandmother. Hoag v. Diedjomajor (2011) 200 Cal.App. 4th 1018. The court stated his request

“[...] is not based on the best interest of the children. To the contrary it punishes the children for

the sins of the grandmother.” (Id at pg 1018).

At appeal the court states: “the trial court found that the father’s objections to visitation

did not arise out of genuine concern for the best interest of the children. Thus, the

constitutionally established presumption that he was acting in the best interest of the children

was overcome.” (Id. at pg. 1020).

In this case, Daniel has raised a number of allegations which at this point are unfounded

and unsubstantiated by anything in the record. It is Helen’s contention that Daniels’ objections

arise from his personal agenda against the children’s Mother’s family and willingness to say

and/or do anything to hinder the relationship with the minor child. If there was any validity to

Daniel’s assertions, it appears to be in essence holding the sins of the grandmother against the

children. Helen continues to deny the outrageous allegations raised against her.
 D. Appellant Was Properly Notified of Findings and Order After Hearing of August 23,

2016 hearing, filed September 21, 2016, No Objection Made By Appellant.

Pursuant to California Rules of Court Rule 5.125 (b)(1), on August 29, 2016, Counsel for

Helen, served on Appellant, via U.S. Mail, a true and correct copy of the Proposed Findings and

Order After Hearing of the August 23, 2016 hearing, for his approval, signature and return, along

with a Proof of Service by Mail. (CT at p. 251).

Pursuant to California Rules of Court Rule 5.125 (c)(2), Appellant never served or filed

any Objection whatsoever to the Proposed Findings and Order After Hearing of the August 23,

2016 hearing, which was served on him via U.S. Mail on August 29, 2016.

Pursuant to California Rules of Court Rule 5.125 (c)(2) (A)-(D), on September 21, 2016,

Counsel for Helen filed with the Court a Declaration in Support of Filing Findings and Order

After Hearing, the Proof of Service by Mail on August 29, 2016, of Proposed Findings and

Order After Hearing on Appellant and the Findings and Order After Hearing of August 23, 2016

hearing. (CT at p. 251).

///

V. CONCLUSION

Daniel has never denied there is a pre-existing relationship between the minor

children and the Helen. On the contrary, Daniel agreed to allow Desiree and Destiny to have

visitation with Helen, Daniel specifically chose the days and times for the telephone contact with

Helen (RT dated August 23, 2016, at p. 19, lines 18-23).

Daniel never raised an objection when the Court indicated he was “...inclined to order

that the Dyers would be able to have the children for dinner every other Thursday...Do you think

you can handle that, sir?” (RT dated August 23, 2016 at p. 22, lines 17-20).
 The allegations raised by Daniel, are unfounded and unsubstantiated by anything in the

record. Daniel’s objection to the children visiting with Helen is based upon his personal agenda

against the Mother’s family and is nothing more than residual animosity from the tumultuous

divorce of between Daniel and the childrens’ Mother and his willingness to say and/or do

anything to hinder the relationship between Helen and the minor children. In essence, Daniel’s

objections to the childrens’ visitation with Helen are nothing more than a case of Daniel holding

the sins of the grandmother against the children.

Based thereon, the application of Family Code § 3102 and 3104 are applicable in this

case, therefore Daniel’s request to appeal the Judgment entered September 21, 2016 granting

grandparent visitation, ordered by Riverside Superior Court, Family Law Division on August 23,

2015, by the Honorable James T. Warren, should be denied.

VI. CERTIFICATE OF WORD COUNT

[California Rules of Court, Rule 8.204(c)(1)]

*** The text of this Respondent’s Brief consists of 5,160 words as counted by WordPerfect

version 8 word-processing program sued to generate the brief.

Respectfully Submitted,

___________________________________
John G. McGill, Jr., Esq.
Attorney for Helen Dyer