It’s not often the losing party in a custody case is able to turn things around at the Court of Appeals.

After all, when a trial court makes a custody decision it believes to be in the best interests of the child:

The laws leaves scant if any room for an appellate court to question the [trial] court’s balancing of best-interests considerations.

Vangsness v. Vangsness607 N.W.2d 468, 477 (Minn. App. 2000).

So it’s uncommon enough to see victory pulled from the jaws of defeat when both parties are parents.

The odds are even worse when a non-parent (grandparent, step-parent, or otherwise) is dealt a loss at the trial court and tries again on appeal.

Our law provides a place for grandparents’ rights, but it’s far from robust.

Which is what makes Hansen v. Hason, A14-1063 (Minn. Ct. App. Jul. 13, 2015), decided just a few weeks ago, so remarkable.

A History of Grandparent-ing

Hansen‘s facts are unique, but hardly as unique as you’d hope.

Father began caring for his two, young children after social services removed them from Mother’s care. Father, who up to this time had been either homeless or in jail, moved in with his mother.

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 dental insurance for the children, took the children to athletic activities, and took the children to doctor’s appointments (including psychological services).

But Father eventually began a new relationship and moved across the street.  The children continued to spend time with Grandmother, but at some point the relationship must have soured.

Grandmother eventually petitioned for visitation with the children, relying on Minnesota’s third-party visitation statute, Minn. Stat. § 257C.08 which required her to prove, by clear and convincing evidence no less, that:

  1. Visitation was in the children’s best interests
  2. Visitation would not interfere with the parent child relationship.

But beyond just seeking visitation, Grandmother’s petition was notable for the amount of time sought.

[S]he requested visitation time including every other full weekend and a weeknight, two weeknights every other alternating week, two non-consecutive weeks during summer vacation, and alternating holidays.

Essentially the sort of schedule you’d expect to see between separated parents.  Not grandparents, where visitation is usually more limited. See Rohmiller v. Hart, 799 N.W.2d 612 (Minn. App. 2011) (affirming visitation for a grandparent of one weekend per month).

Though Father agreed to allow grandmother one overnight per month and one evening per week on a temporary basis, the trial Court ultimately denied Grandmother any visitation following trial:

[C]oncluding that court-ordered visitation was not in the best interests of the children and it would interfere with father’s relationship with the children.

Grandmother appealed.

Giving Teeth to Grandparents’ Rights

On appeal, Judge Kirk (my hero from an earlier post) was having none of it.

Nominally citing Gray v. Hauschildt, 528 N.W.2d 271 (Minn. App. 1995), the Court  looked to:

  1. the suitability of the grandparent’s house for visitation,
  2. the quality of previous visitation,
  3. whether the children experienced behavioral problems after visitation, and
  4. the amount of proposed visitation time.

But the heart of the opinion seems to rest much more firmly on dicta from In re Santoro, 594 N.W.2d 174 (Minn. 1999), which the Appellate Court also cited:

[O]ne of the strongest justifications for grandparent visitation is to encourage the continuation of lasting bonds and a sense of security for children.

Calling the District Court’s concerns over interference unsupported, the Court of Appeals proceeded to pick apart the lower court’s findings and remand for “a reasonable amount of visitation time with the children, within the court’s discretion.”


Did I mention appellate reversals in custody cases are (very) rare?

Did I mention that Grandmother had the burden of showing that visitation was both best for the children and wouldn’t interfere with Father’s relationship?

By clear and convincing evidence?

It wasn’t on Father to prove or disprove anything. In fact, that would have violated his constitutional rights. See Troxel v. Granville, 530 U.S. 57 (2000)

Yet, one gets the sense that the Court of Appeals was troubled enough by the outcome to conduct a more searching analysis than we often  see in custody cases.

Whatever the reason, a good day for advocates of grandparents’ rights, and a good day for those of us convinced that the Court of Appeals has an active and important role in play in reviewing child custody cases.

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