McAllister v. McAllister

2010 ND 40, 779 N.W.2d 652, 2010 N.D. LEXIS 47, 2010 WL 924260

• Court: North Dakota Supreme Court
• Decided: March 16, 2010
• Docket: 20090176
• Status: Published

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Robin McAllister appealed, and Mark McAllister cross-appealed, from the district court’s judgment in this divorce. The district court granted decisionmaking responsibility and primary residential responsibility for E.M., who is Robin McAl-lister’s biological child and Mark McAllis-ter’s stepchild, to Robin McAllister.¹ The district court also found Mark McAllister is E.M.’s psychological parent and granted him reasonable visitation. The district court further ordered Robin McAllister to invite Mark McAllister to school events and provide him with progress reports. Finally, the district court found Mark McAllister “is entitled to all legal rights set forth in § 14-09-28 of the North Dakota Century Code.” We affirm the district court’s judgment that exceptional circumstances exist justifying reasonable visitation for Mark McAllister. The district court’s finding that Mark McAllister has the rights listed in N.D.C.C. § 14-09-28 is not clearly erroneous because the rights relate to communication and visitation.

I.

[¶ 2] Robin McAlister conceived a child, E.M., with Michael Tharaldson. While she was pregnant, Robin McAlister moved out of Tharaldson’s home. She met Mark McAlister and moved in with him. After E.M. was born in 2002, Robin McAlister and Mark McAlister raised him together. Robin McAlister and Mark McAlister married in 2004 and had two children. In 2008, Robin McAlister left Mark McAlister. She took E.M. with her, while leaving the two younger children with Mark McAlister. Robin McA-lister and E.M. moved in with Jason Pros-je, with whom Robin McAlister previously had a relationship. Mark McAlister filed for divorce in March 2008, naming Robin McAlister and Tharaldson as defendants. Robin McAlister and Mark McAlister resolved all the issues of the divorce, except custody of E.M., by stipulation.

[¶ 3] After Robin McAlister left Mark McAlister, she informed E.M. that Thar-aldson, not Mark McAlister, was his biological father. Tharaldson’s paternity of E.M. was established by the district court in 2003, and his parental rights have not been terminated. Tharaldson was ordered to pay three thousand dollars per month in child support. The district court also established a graduated schedule of parenting time for Tharaldson. Robin McAlister testified Tharaldson has remained current on his child support payments and exercised parenting time with E.M. until E.M. was age two, then again after the McAlis-ters separated.

[¶ 4] Mark McAlister retains primary residential responsibility of the two younger children, with scheduled parenting time for Robin McAlister. Regarding his relationship with E.M., he testified, “I have been there since E.M. was born. I took [Robin McAlister] to doctor’s visits. I love E.M. E.M. is the same as my other two children.” E.M. always has, and continues to, refer to Mark McAlister as “Dad” or “Daddy.” Mark McAlister requested decisionmaking responsibility and primary residential responsibility of E.M.:

I want custody of E.M. because I love him. Because he is my oldest kid and he has always been my oldest kid. I worry about his well-being and I worry about him being taken care of. And I worry about him growing up to be a good functioning member of society and being happy. I don’t think Robin can do that. I think that she can clothe him and feed him, but I don’t think that psychologically she can help him when he needs help.

[¶ 5] Robin McAlister testified she believed Mark McAlister was away for work and left her alone with the children too much during the marriage. When she left Mark McAlister, she took E.M. with her “because he is not Mark’s biological child.” She believed leaving her two other children with Mark McAlister “would be best for them.” In her opinion, it would be best for E.M. “to stay with his mother, and ... limit the visitation a little bit with Mark so that he has time to adjust to things going on in his life like Mike [Thar-aldson] wanting visitation, like the new home life with Jason [Prosje] and [Prosje’s daughter] and mommy being happier.”

[¶ 6] The custody investigator testified she believed Robin McAlister had a “strong bond” with E.M., but questioned her “ability to consistently provide a strong, nurturing relationship to her son.” The custody investigator’s concern was based on Robin McAllister’s history of depression and the consistency of her treatment for her mental health needs. She had no concern about Mark McAllister’s ability to consistently maintain a strong bond with E.M. The custody investigator also testified Robin McAllister is “very capable of being a good mother.” She testified it is important for E.M, to “maintain regular contact” with both Robin McAllister and Mark McAllister “because that’s his family, it’s important to him.” According to the custody investigator, E.M. considers Mark McAllister to be his father. She testified Mark McAllister is E.M.’s psychological parent. However, she did not believe E.M. would suffer any detriment or harm if primary residential responsibility was granted to Robin McAl-lister. The custody investigator recommended decisionmaking responsibility and primary residential responsibility should remain with Robin McAllister, with “fairly liberal” visitation for Mark McAllister, including allowing E.M. to attend McAllister family functions. She also recommended that Robin McAllister should inform Mark McAllister of all of E.M.’s school functions and list Mark McAllister as an emergency contact for E.M.

[¶ 7] In its Supplemental Memorandum Opinion, Amended Findings of Fact, Conclusions of Law and Order for Judgment the district court stated, “[T]here is no evidence that Robin is an ‘unfit’ parent.” The district court further noted the custody investigator “did not believe [E.M.] to be at risk of serious harm or detriment in his mother’s custody.” (Emphasis in original). The district court concluded a best interests analysis was unnecessary and granted decisionmaking responsibility and primary residential responsibility to Robin McAllister, but also stated Mark McAllis-ter has the “right to be considered a psychological parent with legal standing and significant visitation rights.”

[¶ 8] The district court discussed Mark McAllister’s role in E.M.’s life:

A person who provides a child’s daily care and who, thereby, develops a close bond and personal relationship with the child becomes the psychological parent of what [sic] child to whom the child turns to for love, guidance, and security. Here, Mark, on a day to day basis from the time of [E.M.J’s birth through March 6, 2008, and again through regular visitation, has been that person to [E.M.]. Mark has fulfilled [E.MJ’s psychological needs for a parent as well as [E.M.] ’s physical needs....

As a psychological parent, Mark should be granted liberal visitation rights. This visitation will not only further the bond between Mark and [E.M.], but also foster the bond between the three young brothers, the youngest two whom reside with Mark.

Thus, Mark is entitled to all legal rights set forth in Section 14-09-28 of the North Dakota Century Code.

The district court made the following findings of fact:

1. It is in the best interest of the minor child, [E.M.], ... that his legal and physical custody be given to his mother, Robin, soon to be Robin Marsolek.

2. Mark is a physiological [sic] parent to [E.M.] and entitled to reasonable visitation and related rights as follows:

A. Every other weekend from Friday at 5:00 p.m. to Sunday at 5:00 p.m., these weekends to coincide with the weekends that Mark retains custody of [M.M.] and [N.M.].

B. Two non-consecutive uninterrupted weeks during the summer, again to coincide with weeks that Mark also retains custody of [M.M.] and [N.M.];

C. Every other Thursday after school at approximately 2:42 p.m. to 7:00 p.m.; and

D. Part of Christmas Day for the McAllister family Christmas and, if not mutually agreed to, specifically 10:00 a.m. to 3:00 p.m. Christmas Day.

3. Robin must/will invite Mark to special school events for [E.M.], so Mark can attend and bring [M.M.] and [N.M.] when appropriate.

4. Robin must/will provide Mark with [E.M.j’s progress reports, which includes but is not limited to, copies of report cards, written medical and dental reports, etc.

5. As a psychological parent Mark is entitled to all legal rights set forth in § 14-09-28 of the North Dakota Century Code.

[¶ 9] In its original Memorandum Opinion, Findings of Fact, Conclusions of Law and Order for Judgment, the district court also granted Mark “the right to obtain all necessary medical and dental care for [E.M.] including psychological counseling and psychiatric care, if applicable.” This language was removed after a hearing was held in April 2009 and does not appear in the district court’s final opinion. The district court explained its reasoning during the April hearing:

I was intending to give him specifically all these special information rights, for E.’s good, not to Robin’s detriment, but for E’s benefit and Mark’s benefit, and the bonding group of the boys with Mark, just because he would be seeing so much of E. in the context of seeing him with the boys, but the access to information. Not the right to make determinations as to care, those would be Robin’s under my decision.

[¶ 10] The district court’s decision in this case was not intended to affect Thar-aldson’s parental rights or duties. The district court explained, “[L]egal and physical custody of [E.M.] should remain with Robin, noting that Michael [Tharaldson] may have some existing legal rights established in the prior paternity case. Nothing in this Memorandum Opinion is intended to affect Michael [Tharaldson]’s support obligations towards [E.M.] ”

II.

[¶ 11] Robin McAllister argues the district court’s finding that Mark McAllister is E.M.’s psychological parent is clearly erroneous. Robin McAllister also argues the district court’s granting of the rights listed in N.D.C.C. § 14-09-28 to Mark McAllister is clearly erroneous because it ignores the parental rights of Tharaldson, and E.M. being placed with Robin McAllis-ter poses no risk of serious detriment or harm to E.M. Finally, Robin McAllister argues the amount of visitation granted to Mark McAllister is excessive.

[¶ 12] Mark McAllister argues the district court’s finding that he is E.M.’s psychological parent, and the district court’s granting him visitation and the rights listed in N.D.C.C. § 14-09-28, are not clearly erroneous. Mark McAllister argues further, however, that the district court’s granting of decisionmaking responsibility and primary residential responsibility to Robin McAllister is clearly erroneous.

[¶ 13] This Court uses the following standard when considering custody determinations:

An award of custody is a finding of fact which this Court will not disturb unless it is clearly erroneous. Hamers v. Guttormson, 2000 ND 93, ¶ 4, 610 . Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous only if it is induced by an erroneous view of the law or, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made. Id.

Interest of D.P.O., 2003 ND 127, ¶ 6, 667 N.W.2d 590.

A.

[¶ 14] Robin McAllister argues the district court’s finding that Mark McAllister is E.M.’s psychological parent is clearly erroneous. We have recently explained:

It is well-settled that parents have a paramount and constitutional right to the custody and companionship of their children superior to that of any other person. That right, however, is not absolute, and in custody disputes between a natural parent and a third party exceptional circumstances may require, in the child’s best interests to prevent serious harm or detriment to the child, that the child be placed in the custody of a third party rather than with the natural parent. While this Court has not attempted to narrowly define or circumscribe the exceptional circumstances which must exist to permit a court to consider placing custody of a minor child with a third party rather than with the natural parent, each case in which such a placement has been upheld by this Court has involved a child who has been in the actual physical custody of the third party for a sufficient period of time to develop a psychological parent relationship with that third party.

Edwards v. Edwards, 2010 ND 2, ¶ 8, 777 N.W.2d 606 (quoting Hamers, 2000 ND 93, ¶ 5, 610 N.W.2d 758).

[¶ 15] We have previously described the role of a psychological parent: “A person who provides a child’s daily care and who, thereby, develops a close bond and personal relationship with the child becomes the psychological parent to whom the child turns for love, guidance, and security.” Hamers, 2000 ND 93, ¶ 5, 610 N.W.2d 758 (citing Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986)). A psychological parent finding is not dispositive in custody determinations, however:

Establishment of a psychological parent relationship does not end the trial court’s inquiry in making a custody decision, but merely furnishes a justification for the award of custody to a party other than the natural parent. Daley v. Gunville, 348 N.W.2d 441, 445 (N.D.1984). When a psychological parent and a natural parent each seek a court-ordered award of custody, the natural parent’s paramount right to custody prevails unless the court finds it in the child’s best interests to award custody to the psychological parent to prevent serious harm or detriment to the welfare of the child. Cox v. Cox, 2000 ND 144, ¶ 22, 613 N.W.2d 516; Simons v. Gisvold, 519 N.W.2d 585, 587 (N.D.1994).

D.P.O., 2003 ND 127, ¶ 6, 667 N.W.2d 590.

[¶ 16] Here, Mark McAllister clearly provided E.M.’s daily care and thereby, developed a close bond and personal relationship with E.M. Hamers, 2000 ND 93, ¶ 5, 610 N.W.2d 758 (citing Patzer, 396 N.W.2d at 743). Mark McAllister, along with Robin McAllister, raised E.M. from birth. Before the McAllisters’ separation, Mark McAllister was the only father E.M. knew. E.M. “has been in the actual physical custody of the third party for a sufficient period of time to develop a psychological parent relationship with that third party.” Edwards, 2010 ND 2, ¶8, 777 N.W.2d 606 (quoting Hamers, at ¶ 5). The district court’s conclusion that Mark McAl-lister is E.M.’s psychological parent is not induced by an erroneous view of the law and is supported by the record.

B.

[¶ 17] Although the district court determined Mark McAllister is E.M.’s psychological parent, it granted decisionmak-ing responsibility and primary residential responsibility to Robin McAllister. Mark McAllister argues this finding is clearly erroneous.

[¶ 18] As stated above, the establishment of a psychological parent relationship can constitute exceptional circumstances justifying the placement of decisionmaking responsibility and primary residential responsibility to a person other than a natural parent. D.P.O., 2003 ND 127, ¶ 6, 667 N.W.2d 590 (citing Daley, 348 N.W.2d at 445). Here, the district court noted the custody investigator’s testimony that she did not believe E.M. was at risk of harm or detriment if decisionmaking responsibility and primary residential responsibility were granted to Robin McAllister. The district court then stated, “[A] best interest analysis is not appropriate here so as to deprive Robin of primary physical custody.” The district court also repeatedly asserted Robin McAllister is not “unfit.”

[¶ 19] Mark McAllister argues the district court’s repeated references to parental fitness show its decision was induced by an erroneous view of the law. In Mansukhani v. Pailing, 318 N.W.2d 748 (N.D.1982), the district court included the following statement in its memorandum opinion:

They [Donald and Jean] contend that they need not show that the mother is unfit and overlook the ruling of the Supreme Court case requiring the balancing of the paramount rights of a biological parent with the best interests of the children. However most of the trial time was consumed in attempting to show the weakness and faults of the mother. They have failed to persuade this Court that she is an unfit mother or that she would not be a good mother in the best interests of the children.

Mansukhani, 318 N.W.2d at 751 (alteration in original). We stated:

We believe the court’s foregoing statement demonstrates that it focused on a parental fitness test which is an incorrect application of the law in a custody dispute such as this between a natural parent and a third party (i.e. the children’s grandparents). Jenny’s fitness as a parent is not at issue and is not the test. The test is whether or not there are exceptional circumstances which require that in Jennifer and Allen’s best interests they be placed in the custody of their grandparents rather than with their biological mother.

Id.

[¶ 20] Here, as in Mansukhani, the district court referred to the mother’s parental fitness. The district court stated:

The test is not whether Mark would use better judgment or would even be a better parent; but initially, whether she is fit, and whether exceptional circumstances exist in that leaving [E.M.] with her would be detrimental and harmful to his welfare in the present case, those circumstances simply do not exist.

The district court’s assertion that it must first determine whether Robin McAllister is a fit parent is incorrect. Mansukhani, 318 N.W.2d at 751. The district court ultimately applied the proper test, however, stating E.M. was not at risk of serious harm or detriment if placed in Robin McAllister’s care. D.P.O., 2003 ND 127, ¶ 6, 667 N.W.2d 590 (citing Cox, 2000 ND 144, ¶ 22, 613 N.W.2d 516; Simons, 519 N.W.2d at 587). The district court misstated the test to be used, but its decision was not induced by an erroneous view of the law.

C.

[¶ 21] While Mark McAllister was not granted decisionmaking responsibility and primary residential responsibility of E.M., he was granted reasonable visitation. Robin McAllister concedes Mark McAllis-ter should have some visitation, but argues the amount of visitation the district court granted Mark McAllister is excessive. She asserts she, as the natural parent, should decide the amount of visitation Mark McAllister can exercise. This Court has previously discussed a district court’s authority to grant visitation to non-parents:

We believe the authority for awarding visitation to a non-parent emanates from our previous decisions concerning child custody and visitation.... The rationale for awarding custody to the grandparents is the existence of exceptional circumstances which will further the best interests of the child. Daley, supra 348 N.W.2d at 443-444. It is appropriate to extend the application of that same rationale to the award of visitation to a non-parent.... It is clear from the above-cited cases that the paramount concern in awarding visitation to a non-parent is the best interests of the child. See Annot., 1 A.L.R.4th 1270 (1980). This court stated in Muraskin v. Muraskin, 336 N.W.2d 332, 336 (N.D.1983), a case involving the modification of visitation rights of a noncustodial parent: “Visitation privileges are created to promote the best interests of the child.”

Quirk v. Swanson, 368 N.W.2d 557, 560 (N.D.1985).

[¶ 22] Here, we have determined the district court’s finding that Mark McAllister is E.M.’s psychological parent is not clearly erroneous. The existence of a psychological parent relationship can constitute exceptional circumstances justifying the placement of decisionmaking responsibility and primary residential responsibility with a third party. Edwards, 2010 ND 2, ¶ 8, 777 N.W.2d 606 (citing Hamers, 2000 ND 93, ¶5, 610 N.W.2d 758). A district court can grant decision-making responsibility and primary residential responsibility to a third party “to prevent serious harm or detriment to the child.” D.P.O., 2003 ND 127, ¶ 6, 667 N.W.2d 590 (citing Cox, 2000 ND 144, ¶ 22, 613 N.W.2d 516; Simons, 519 N.W.2d at 587). Granting reasonable visitation to a third party is a lesser intrusion on a parent’s constitutional right to the custody and companionship of their children than granting decisionmaking responsibility and primary residential responsibility to a third party.

[¶ 23] The district court found E.M. was not at risk of serious harm or detriment if placed in Robin McAllister’s care. This finding was in response to Mark McAllister’s request for decisionmaking responsibility and primary residential responsibility of E.M. This finding does not preclude the district court from granting reasonable visitation to Mark McAllister. It is not inconsistent for the district court to recognize that it is not necessary to award primary residential responsibility to Mark McAllister rather than Robin McAl-lister to prevent serious harm or detriment to E.M. and to also recognize that it is necessary to award reasonable visitation to Mark McAllister to prevent serious harm or detriment to E.M. Because granting reasonable visitation to a third party is a lesser intrusion on the parent’s constitutional rights, the same showing of serious harm or detriment is not required. Mark McAllister’s psychological parent relationship with E.M. is an exceptional circumstance that justifies this lesser intrusion on Robin McAllister’s constitutional rights as E.M.’s natural parent. The district court granted Mark McAllister visitation every other weekend, every Thursday, two weeks in the summer, and part of Christmas day. This is not an excessive amount of visitation for E.M.’s psychological parent to exercise. The district court’s granting of visitation to Mark McAllister was not induced by an erroneous view of the law, and is supported by the record.

[¶ 24] Robin McAllister, Mark McAllis-ter, and Tharaldson may have a difficult time complying with the judgments granting reasonable visitation to both Mark McAllister and Tharaldson. Tharaldson has not appealed, and in its supplemental memorandum opinion, the district court did not specifically address the parenting time previously granted to Tharaldson. The best interests of a child as young as E.M. may not be well served by having him stay in three different homes with three different “parents” each week. District courts should consider stability for the child and the practical implications for the parties when determining a parenting schedule.

D.

[¶ 25] Robin McAllister argues the district court’s finding that “[a]s a psychological parent Mark is entitled to all legal rights set forth in § 14-09-28 of the North Dakota Century Code” is clearly erroneous. The parental rights that were listed in N.D.C.C. § 14-09-28 at the time this divorce commenced are now listed in N.D.C.C. § 14-09-32. See 2009 N.D. Sess. Laws ch. 149, §§ 4,12 (repealing N.D.C.C. § 14-09-28 and creating N.D.C.C. § 14-09-32). Section 14-09-28, N.D.C.C., listed the following “[p]arental custody and visitation rights and duties”:

1. Each parent of a child has the following custody and visitation rights and duties:

a. Right to access and obtain copies of the child’s educational, medical, dental, religious, insurance, and other records or information.

b. Right to attend educational conferences concerning the child. This right does not require any school to hold a separate conference with each parent.

c. Right to reasonable access to the child by written, telephonic, and electronic means.

d. Duty to inform the other parent as soon as reasonably possible of a serious accident or serious illness for which the child receives health care treatment. The parent shall provide to the other parent a description of the serious accident or serious illness, the time of the serious accident or serious illness, and the name and location of the treating health care provider.

e. Duty to immediately inform the other parent of a change in residential telephone number and address.

f. Duty to keep the other parent informed of the name and address of the school the child attends.

[¶ 26] We discussed rights granted to a stepparent in Edwards. We determined some of the rights granted to the stepfather related to decisionmaking authority, while other rights related to the stepfather’s visitation and communication. Edwards, 2010 ND 2, ¶ 13, 777 N.W.2d 606. We reversed the granting of rights related to decisionmaking, while affirming the granting of rights related to visitation and communication. Id. The rights listed in N.D.C.C. § 14-09-28 relate to visitation and communication, not decisionmaking. The district court granted Mark McAllis-ter the right to access information, not the right to make any decisions regarding E.M. The district court’s finding that Mark McAllister has “all legal rights set forth in § 14-09-28 of the North Dakota Century Code” is not induced by an erroneous view of the law and is supported by the record.

III.

[¶ 27] We affirm the district court’s judgment finding Mark McAllister is E.M.’s psychological parent, Robin McAl-lister has decisionmaking responsibility and primary residential responsibility of E.M., and Mark McAllister has reasonable visitation and the rights listed in N.D.C.C. § 14-09-28.

[¶ 28] DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ., concur.

1 . When appropriate, this opinion uses the language of the amended Chapter 14-09, N.D.C.C., although the case was decided under the prior law. See Machart v. Machart, 2009 ND 208, ¶ 1 n. 1, 776 N.W.2d 795 (citing 2009 N.D. Sess. Laws ch. 149, §§ 4, 8).