This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1063
Joyce Elaine Hansen, petitioner, Appellant,
vs.
Jeffrey Ray Hanson, Respondent,
Joni Michelle Herdrich, Respondent.
Filed July 13, 2015 Reversed and remanded Kirk, Judge
Dakota County District Court File No. 19AV-FA-13-2663
Christopher M. Banas, Banas Family Law, P.A., Lilydale, Minnesota (for appellant)
Matthew T. Majeski, Majeski Law, LLC, Woodbury, Minnesota (for respondent Jeffrey Ray Hanson)
Joni Michelle Herdrich, Little Canada, Minnesota (pro se respondent)
Considered and decided by Connolly, Presiding Judge; Chutich, Judge; and Kirk,
Judge. UNPUBLISHED OPINION
KIRK, Judge
Appellant-grandmother Joyce Elaine Hansen challenges the district court’s denial
of her petition for visitation with her two minor grandchildren, arguing that visitation is
in the children’s best interests and would not interfere with father’s relationship with the
children. Because grandmother met her burden of proof showing these two factors under
Minn. Stat. § 257C.08, subd. 3 (2014), the district court abused its discretion in not
granting her visitation, and we reverse and remand to the district court.
FACTS
Respondent-father Jeffrey Ray Hanson and respondent-mother Joni Michelle
Herdrich, who never married, are the biological parents of the minor children N.G.H. and
T.R.H.1 After the state removed the children from mother’s care, father assumed
parenting duties and moved into grandmother’s home with N.G.H. in May 2009,
followed by T.R.H. in October. During this period, father was granted sole legal and sole
physical custody of the two small children. Prior to moving in with grandmother, father
testified in a deposition that he spent time in jail and was living “on the street, house to
house.”
For over three years, grandmother helped raise the children while father got his
life back on track and secured employment. Grandmother shared in the daily parenting
responsibilities, paid for most of the child-related household expenses, secured health and
1 Herdrich, who is a named party to this appeal, did not participate in the district-court proceedings.
2 dental insurance for the children, took the children to athletic activities, and took the
children to doctor’s appointments (including psychological services).
In 2010, father began a relationship with Vicky Dahlberg, T.R.H.’s daycare
provider, who lived across the street from grandmother’s residence. Around October
2012, father and the children had transitioned to living full time at Dahlberg’s residence.
After this time, the children continued to spend significant amounts of time with
grandmother.
On August 28, 2013, grandmother filed a petition requesting that the district court
award her reasonable and liberal visitation with the children. In October, the parties
voluntarily entered into mediation, and stipulated to a temporary visitation schedule
where the children would visit grandmother overnight once per month and after school to
5:00 p.m. once a week. The parties also agreed to go to counseling to improve their
communication and boundary-setting skills.
On February 26, 2014, the district court held an evidentiary hearing on
grandmother’s petition where the parties and other witnesses testified. Both parties were
represented by counsel. The district court accepted exhibits submitted by father, which
included documents and emails from N.G.H.’s teachers regarding his behavior at school,
and email correspondence between the parties. Grandmother submitted into the record an
exhibit of a proposed visitation schedule and a copy of father’s deposition taken on
September 30, 2013. Grandmother’s proposed visitation schedule was more expansive
than the October 2013 temporary visitation schedule, as she requested visitation time
including every other full weekend and a weeknight, two weeknights every other
3 alternating week, two non-consecutive weeks during summer vacation, and alternating
holidays.
In April, the district court issued an order denying grandmother’s petition and
vacating the October 2013 temporary order, concluding that court-ordered visitation was
not in the best interests of the children and it would interfere with father’s relationship
with the children. Focusing on grandmother’s conduct, the district court pointed out that
grandmother had undermined father’s relationship with the children by refusing to
discipline the children “in any way” and by telling them that they didn’t have to listen to
father or Dahlberg, and that N.G.H.’s behavior at school had worsened after visiting
grandmother. The district court granted father complete discretion in determining how
much, if any, visitation occurred between grandmother and the children.
Grandmother appeals.
DECISION
A district court has broad discretion in determining custody matters. In re Custody
of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002). “Appellate review of custody
determinations is limited to whether the district court abused its discretion by making
findings unsupported by the evidence or by improperly applying the law.” Id. A
grandparent of a minor child may petition for visitation rights if the child resided with
the grandparent for at least one year and was subsequently removed from the home by
the minor’s parents. Minn. Stat. § 257C.08, subd. 3. The district court “shall” grant the
grandparent’s petition if it finds by clear and convincing evidence that visitation rights
would be in the best interests of the child and would not interfere with the parent-child
4 relationship. Id.; see SooHoo v. Johnson, 731 N.W.2d 815, 823 (Minn. 2007). We
defer to the district court’s credibility determinations. Sefkow v. Sefkow, 427 N.W.2d
203, 210 (Minn. 1988).
Grandmother argues that the district court clearly erred in finding that she
undermined father’s relationship with his children. To the contrary, grandmother points
out that the record demonstrates that she fostered a healthy relationship between father
and the children. After a careful review of the record, we are persuaded by
grandmother’s argument.
The district court’s findings that visitation would interfere with the parent-child
relationship are not supported by the record. Father alleged that grandmother made
repeated derogatory statements about Dahlberg. But there is no other evidence in the
record supporting this allegation. Father testified at the deposition that he did not know
for a fact that grandmother made the alleged statements and that it was possible that the
children were simply voicing their opinions about the current situation. Grandmother
denied making the statements. At the time of the hearing, N.G.H. and T.R.H. were eight
years old and six years old, respectively, and were not questioned by the district court
about these statements, which was appropriate given their young ages.
When determining whether visitation would interfere with the relationship
between the children and parent, relevant factors have included the suitability of the
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1063
Joyce Elaine Hansen, petitioner, Appellant,
vs.
Jeffrey Ray Hanson, Respondent,
Joni Michelle Herdrich, Respondent.
Filed July 13, 2015 Reversed and remanded Kirk, Judge
Dakota County District Court File No. 19AV-FA-13-2663
Christopher M. Banas, Banas Family Law, P.A., Lilydale, Minnesota (for appellant)
Matthew T. Majeski, Majeski Law, LLC, Woodbury, Minnesota (for respondent Jeffrey Ray Hanson)
Joni Michelle Herdrich, Little Canada, Minnesota (pro se respondent)
Considered and decided by Connolly, Presiding Judge; Chutich, Judge; and Kirk,
Judge. UNPUBLISHED OPINION
KIRK, Judge
Appellant-grandmother Joyce Elaine Hansen challenges the district court’s denial
of her petition for visitation with her two minor grandchildren, arguing that visitation is
in the children’s best interests and would not interfere with father’s relationship with the
children. Because grandmother met her burden of proof showing these two factors under
Minn. Stat. § 257C.08, subd. 3 (2014), the district court abused its discretion in not
granting her visitation, and we reverse and remand to the district court.
FACTS
Respondent-father Jeffrey Ray Hanson and respondent-mother Joni Michelle
Herdrich, who never married, are the biological parents of the minor children N.G.H. and
T.R.H.1 After the state removed the children from mother’s care, father assumed
parenting duties and moved into grandmother’s home with N.G.H. in May 2009,
followed by T.R.H. in October. During this period, father was granted sole legal and sole
physical custody of the two small children. Prior to moving in with grandmother, father
testified in a deposition that he spent time in jail and was living “on the street, house to
house.”
For over three years, grandmother helped raise the children while father got his
life back on track and secured employment. Grandmother shared in the daily parenting
responsibilities, paid for most of the child-related household expenses, secured health and
1 Herdrich, who is a named party to this appeal, did not participate in the district-court proceedings.
2 dental insurance for the children, took the children to athletic activities, and took the
children to doctor’s appointments (including psychological services).
In 2010, father began a relationship with Vicky Dahlberg, T.R.H.’s daycare
provider, who lived across the street from grandmother’s residence. Around October
2012, father and the children had transitioned to living full time at Dahlberg’s residence.
After this time, the children continued to spend significant amounts of time with
grandmother.
On August 28, 2013, grandmother filed a petition requesting that the district court
award her reasonable and liberal visitation with the children. In October, the parties
voluntarily entered into mediation, and stipulated to a temporary visitation schedule
where the children would visit grandmother overnight once per month and after school to
5:00 p.m. once a week. The parties also agreed to go to counseling to improve their
communication and boundary-setting skills.
On February 26, 2014, the district court held an evidentiary hearing on
grandmother’s petition where the parties and other witnesses testified. Both parties were
represented by counsel. The district court accepted exhibits submitted by father, which
included documents and emails from N.G.H.’s teachers regarding his behavior at school,
and email correspondence between the parties. Grandmother submitted into the record an
exhibit of a proposed visitation schedule and a copy of father’s deposition taken on
September 30, 2013. Grandmother’s proposed visitation schedule was more expansive
than the October 2013 temporary visitation schedule, as she requested visitation time
including every other full weekend and a weeknight, two weeknights every other
3 alternating week, two non-consecutive weeks during summer vacation, and alternating
holidays.
In April, the district court issued an order denying grandmother’s petition and
vacating the October 2013 temporary order, concluding that court-ordered visitation was
not in the best interests of the children and it would interfere with father’s relationship
with the children. Focusing on grandmother’s conduct, the district court pointed out that
grandmother had undermined father’s relationship with the children by refusing to
discipline the children “in any way” and by telling them that they didn’t have to listen to
father or Dahlberg, and that N.G.H.’s behavior at school had worsened after visiting
grandmother. The district court granted father complete discretion in determining how
much, if any, visitation occurred between grandmother and the children.
Grandmother appeals.
DECISION
A district court has broad discretion in determining custody matters. In re Custody
of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002). “Appellate review of custody
determinations is limited to whether the district court abused its discretion by making
findings unsupported by the evidence or by improperly applying the law.” Id. A
grandparent of a minor child may petition for visitation rights if the child resided with
the grandparent for at least one year and was subsequently removed from the home by
the minor’s parents. Minn. Stat. § 257C.08, subd. 3. The district court “shall” grant the
grandparent’s petition if it finds by clear and convincing evidence that visitation rights
would be in the best interests of the child and would not interfere with the parent-child
4 relationship. Id.; see SooHoo v. Johnson, 731 N.W.2d 815, 823 (Minn. 2007). We
defer to the district court’s credibility determinations. Sefkow v. Sefkow, 427 N.W.2d
203, 210 (Minn. 1988).
Grandmother argues that the district court clearly erred in finding that she
undermined father’s relationship with his children. To the contrary, grandmother points
out that the record demonstrates that she fostered a healthy relationship between father
and the children. After a careful review of the record, we are persuaded by
grandmother’s argument.
The district court’s findings that visitation would interfere with the parent-child
relationship are not supported by the record. Father alleged that grandmother made
repeated derogatory statements about Dahlberg. But there is no other evidence in the
record supporting this allegation. Father testified at the deposition that he did not know
for a fact that grandmother made the alleged statements and that it was possible that the
children were simply voicing their opinions about the current situation. Grandmother
denied making the statements. At the time of the hearing, N.G.H. and T.R.H. were eight
years old and six years old, respectively, and were not questioned by the district court
about these statements, which was appropriate given their young ages.
When determining whether visitation would interfere with the relationship
between the children and parent, relevant factors have included the suitability of the
grandparent’s house for visitation, the quality of previous visitation, whether the
children experienced behavioral problems after visitation, and the amount of proposed
visitation time. See Gray v. Hauschildt, 528 N.W.2d 271, 273-74 (Minn. App. 1995).
5 Here, grandmother was instrumental in providing a stable, secure environment for
father to parent and reside with his children in her home when he was granted full
custody after they were placed in foster care. She acted as the primary caretaker for two
children in their formative years. There is no evidence in the record that grandmother’s
house is inappropriate for visitation, and father admitted that the weekly visitations
between October 2012 and May 2013 were working “generally well.” Evidence
concerning the children’s behavioral problems after visitation was at best weak; father
testified that the children were “anxious” after an overnight visit with grandmother, but
he admitted that it was possible that the children’s behavior could be attributed to other
factors unrelated to the visitation. There is no evidence that T.R.H. experienced any
difficulties at school related to the visits, and N.G.H.’s school records do not
demonstrate a clear link between the visits and his behavior at school. Rather, the record
clearly establishes that N.G.H.’s behavioral problems predate his court-ordered visits
with grandmother. With this said, we recognize that grandmother’s proposed visitation
schedule is significantly greater than other grandparent-visitation cases. For example, in
Rohmiller v. Hart, we affirmed a district court’s determination that visitation of one
weekend each month was appropriate. 799 N.W.2d 612, 615 (Minn. App. 2011), aff’d,
811 N.W.2d 585 (Minn. 2012).
Turning to the best-interests factors, “[o]ne of the strongest justifications for
grandparent visitation is to encourage the continuation of lasting bonds and a sense of
security for children.” In re Santoro, 594 N.W.2d 174, 178 (Minn. 1999). Grandmother
argues that court-ordered visitation is in the best interests of the children. After
6 reviewing the record, we are unable to determine if the district court focused on the
children’s best interests. The district court implicitly credited father’s testimony that
visitation was not in the best interests of the children, but disregarded his testimony that
the children love their grandmother, that she is, for all intents and purposes, a good
grandmother, and that the children would benefit from seeing her. Given the children’s
relatively young ages, it is understandable why the district court did not make findings
regarding N.G.H.’s and T.R.H.’s preferences regarding visitation. See id. at 178. But
the district court did not credit father’s testimony that the children expressed to him that
they enjoyed spending time with their grandmother.
The record also does not support the district court’s conclusion that grandmother
failed to discipline the children “in any way” while they were in her care. A review of
the record demonstrates neither party was an effective disciplinarian, and they did not
agree on how to discipline the children, especially with regard to N.G.H.’s behavioral
issues. Grandmother testified that she implemented time-outs and calming techniques
when disciplining N.G.H. Traditionally, parents, not grandparents, are the primary
disciplinarians of their children, and the question of whether a grandmother can spend
time with her grandchildren should not turn on her ability to discipline the children
during a visit.
By all accounts, grandmother has played an important role in the children’s lives
since they were very young. We conclude on the record before us that the district court
erred in failing to recognize that it is in the best interests of the children to preserve the
bond that they have developed with their grandmother. On this record, grandmother met
7 her burden of demonstrating by clear and convincing evidence that court-ordered
visitation would not interfere with father’s parent-child relationship and that visitation
was in the best interests of the children. See Minn. Stat. § 257C.08, subd. 3. We reverse
the denial of visitation and remand to the district court with instructions to issue an order
granting grandmother a reasonable amount of visitation time with the children, within
the court’s discretion. We also remind the parties that “specific terms of judicially
ordered visitation are no substitute for flexibility and cooperative arrangements in the
child’s best interests.” In re C.D.G.D., 800 N.W.2d 652, 663 (Minn. App. 2011), review
denied (Minn. Aug. 24, 2011).
Reversed and remanded.