• June 28, 2011

C.D.G.D. was born in September 2008.  His mother was unmarried and no father was listed on the birth certificate, although the mother recognized Anthony Darst as the father and gave her son Darst’s surname.  Subsequent genetic testing confirmed Darst as the father.

C.D.G.D. and his mother lived with the child’s maternal grandmother, Roxanne Givens, until C.D.G.D.’s mother was murdered in January 2009 by a man she had previously dated.  Two weeks after the murder, without notice to Darst, Givens filed an ex parte petition to become C.D.G.D.’s sole legal and sole physical custodian.  The court immediately ordered that Givens be designated as C.D.G.D.’s temporary legal and physical custodian.  Darst learned of the order and served and filed a petition for judgment of paternity.

The district court consolidated the custody petitions, adjudicated Darst the father in May 2009, conducted a custody hearing in July 2009, and finally dismissed Givens’ custody petition in November 2009.  During the interim, C.D.G.D. continued to live with Givens under the temporary order and, according to Darst, he was given only tightly restricted opportunities to see the child.  After the November 2009 order effectively granted custody to Darst, Givens stated that she was not allowed to see the child.

In February 2010, Givens petitioned for grandparent visitation.  Although Darst agreed to some visitation, the schedules proposed by the two parties were vastly different.  The district court eventually awarded grandparent periodically increasing visitation, culminating in Givens having the child two evenings a week and every other weekend from Friday through Sunday.  Darst appealed and the Court of Appeals reversed.

The Minnesota Court of Appeals began by noting that a parent has a fundamental and constitutionally-protected right to make parenting decisions, including who spends time with the child.  Although Minnesota law allows grandparents of a child whose parent is deceased to petition for visitation and a court may grant such visitation even against the wishes of the surviving parent, such visitation may not interfere with that parent’s relationship with the child.  Moreover, the grandparents must prove by clear and convincing evidence that visitation would not interfere with this relationship.

In concluding that the nature and amount of visitation ordered by the district court exceeded its discretion, the Court of Appeals found that the lower court erroneously treated Givens like a parent rather than a grandparent.  In formulating the visitation schedule, the court relied on the Minnesota Supreme Court’s pamphlet “A Parental Guide to Making Child-Focused Parenting Time Decisions.”  This guide, however, is based on the understanding that children have an interest in a balanced relationship between parents; its use with respect to grandparent visitation is not contemplated by the statute.

The Court of Appeals then found that a visitation schedule that provided visitation to Givens for some part of 182 days per calendar year, with 52 overnights was excessive and interfered with Darst’s relationship with C.D.G.D.  The Court also noted that the visitation ordered in this case was unprecedented in scale and design in comparison to other such cases.  In addition, visitation was ordered without  a finding by the district court of clear and convincing evidence that it would not interfere with the parent-child relationship.  Because the district court equated the grandmother’s interest to that of a noncustodial parent and failed to apply the required presumptions and burdens, the Court of Appeals ruled that the trial court had abused its discretion.

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