K.L.G. v. S.L.N.

2001 ND 33, 622 N.W.2d 232
CourtNorth Dakota Supreme Court
DecidedFebruary 15, 2001
DocketNo. 20000158
StatusPublished
Cited by12 cases

This text of 2001 ND 33 (K.L.G. v. S.L.N.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K.L.G. v. S.L.N., 2001 ND 33, 622 N.W.2d 232 (N.D. 2001).

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] K.L.G. appealed the district court’s visitation order and allocation of transportation costs. K.L.G. argues the trial court erred by establishing an overly restrictive visitation schedule without sufficient justification and by allocating all the responsibility for transportation to him while reducing his child support obligation by only $25 a month. We reverse and remand.

I

[¶ 2] K.L.G. (“father”) and S.L.N. (“mother”) are parents of R.J.N.G. (“child”) who was born October 16, 1998. The father and mother never married. Prior to the child’s birth, the parents lived together for a few months in Minnesota. The mother moved to Stanley to live with her parents in May 1998. She continues to live with her parents and works as a medical transcriptionist earning about $1000 per month. The father lives in Morris, Minnesota, where he is employed in his family’s business and earns about $1440 per month. It takes approximately seven to eight hours to drive from Morris, Minnesota, to Stanley, North Dakota.

[¶ 3] The father and mother maintained contact during the pregnancy and the father was present at the birth. The father estimates he has seen the child approximately every third week from birth to the time of the trial. The mother has not allowed overnight visitation or visitation outside of the Stanley and Minot area.

[¶ 4] The father initiated an action for paternity, custody, support, terms of visitation, costs of visitation, jurisdiction for child support, and designation of the right to claim the child for tax exemption. Both parents agreed K.L.G. was the father of the child, and physical custody should be given tuthe mother. The major points of contention were visitation schedule and transportation costs.

[¶ 5] Following a hearing on February 7, 2000, both parties submitted a proposed visitation schedule. The father’s proposal provided for a transition time, beginning with short visitation restricted to the Stanley area due to the child’s young age and need to adjust. The visitation schedule progressed to allow overnight visitation, and eventually, one week of visitation every month at the father’s home in Minnesota. The father’s plan also proposed alternating holidays. After the child started school, the father proposed longer summer visits to compensate for the loss of the week-long visits during the school year.

[¶ 6] The mother proposed visitation of one weekend per month which included one overnight visitation from Saturday morning to Sunday evening, geographically restricted to Minot, Stanley, or the surrounding area until the child turned two years old. Between the ages of two and three, the mother proposed one weekend per month, including two overnights from Friday morning to Sunday evening, still restricted to the Minot and Stanley area. Additionally, the mother proposed one week of summer visitation in the Morris, Minnesota area. Once the child turned three, but before starting school in the fall of 2004, the mother proposed visitation of one weekend per month including two overnights with no restrictions on location, and one week of summer visitation with no restriction on location. Additionally, the mother offered to travel to Minnesota as many as three times each year, staying in Minnesota for two nights each time. She proposed the child would spend one night with her and one with his father during these weekends.

[¶ 7] The district court issued a memorandum opinion, the basis for the judgment dated March 30, 2000. The judgment established a visitation schedule [235]*235similar to, but in some ways more restrictive than, the visitation proposed by the mother. The trial court extended the geographical restriction to age three and omitted the week-long visitation the mother had proposed for the summer of 2001. After the age of three, the trial court increased the visitation from one to two weekends per month, and extended the summer visitation from one week to two weeks anywhere in the United States or Canada.

[¶ 8] The visitation schedule alternated holidays, but restricted them in duration. For example, Christmas Day visitation began at 9:00 a.m. and ended at 8:00 p.m. the following day. Visitation on other holidays, such as the child’s birthday and the Fourth of July, was restricted' to only one day. The trial court did not include the offer of the mother to share the burden of transportation, instead it allocated all responsibility for transportation for visitation to the father. For that reason, the trial court reduced the father’s child support obligation by $25 per month.

II

[¶ 9] A trial court’s decision on visitation is a finding of fact which will not be reversed on appeal unless it is clearly erroneous as established by N.D.R.Civ.P. 52(a). Schiff v. Schiff, 2000 ND 113, ¶ 10, 611 N.W.2d 191. Because assessment of transportation costs is part of the broader issues of visitation and custody, we will apply the same standard of review to the trial court’s determination of such costs. Berg v. Berg, 2000 ND 36, ¶ 18, 606 N.W.2d 895. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Fox v. Fox, 1999 ND 68, ¶ 7, 592 N.W.2d 541.

III

[¶ 10] The father argues the trial court erred by establishing an overly restrictive visitation schedule, more restrictive than the plan proposed by the mother, without reasonable justification. District courts have the authority to grant a noncustodial parent visitation rights. Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332. Section 14-05-22(2), N.D.C.C., specifies “the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child.” Visitation is primarily concerned with the best interests of the child. Muraskin v. Muraskin, 336 N.W.2d 332, 336 (N.D.1983). Visitation between a child and a noncustodial parent is not merely a privilege of the noncustodial parent, but a right of the child. Johnson v. Schlotman, 502 N.W.2d 831, 835 (N.D.1993).

[¶ 11] The primary purpose of visitation is to promote the best interests of the children, not the wishes or desires of the parents. Moilan v. Moilan, 1999 ND 103, ¶ 29, 598 N.W.2d 81. Visitation with the noncustodial parent is presumed to be in the child’s best interests. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896. Section 14-05-22(2), N.D.C.C., requires the court grant a noncustodial parent rights of visitation which will enable the maintenance of a beneficial parent-child relationship, allowing restriction or denial of this right only if “visitation is likely to endanger the child’s physical or emotional health.” See Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332 (stating the noncustodial parent is deprived of visitation only if visitation is likely to endanger the child’s physical or emotional health); Hendrickson,

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Bluebook (online)
2001 ND 33, 622 N.W.2d 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klg-v-sln-nd-2001.