Minnesota Association for Justice Divorce and Family Law Columns

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Winter 2005

Court of Appeals

Legal Custody

In Re the Marriage of Tarlan v. Sorensen

(Filed September 6, 2005)

Appellant Mother and Respondent Father were divorced in 1999. In 2001 Respondent, who had sole legal and physical custody of the children, obtained the court’s permission to move the children’s residence to North Dakota while Respondent attended law school. In 2004, the social service agency in North Dakota recommended counseling for the parties’ daughter due to Respondent’s monitoring the daughter’s weight over the daughter’s objection, as well as Respondent’s use of derogatory language in the presence of the minor children.

In 2004, in light of Respondent’s completion of law school, Appellant moved the district court for an order requiring Respondent to re-establish the children’s residence in Minnesota. Appellant also requested a court order requiring Respondent to enroll the daughter in counseling and to refrain from vehemently monitoring the daughter’s weight. On oral argument, the district court denied Appellant’s motions, and Appellant sought review.

The Court of Appeals affirmed the district court’s denial of Appellant’s motion to require the children’s residence to revert to Minnesota. The previous order allowing Respondent to move the children to North Dakota did not require a move back to Minnesota at the conclusion of law school; and the appellate court ruled that any ambiguity regarding the district court’s intention at the time of the previous order was a decision properly vested in the district court that had originally issued the decision.

The Court of Appeals reversed and remanded on the counseling and weight monitoring issues, ruling that Appellant was entitled to an evidentiary hearing, in the same manner as a custody modification motion, by establishing a prima facie case for limiting Respondent’s legal custody authority.

Third Party Child Custody

Johnson v. Fink

(Filed September 20, 2005)

In 1995, Mother and Appellant Father’s child was born. Eighteen months later, Mother died in an auto accident, and Appellant and Respondent Grandmother stipulated to joint legal and physical custody of the child. Over time, tensions developed between Appellant and Respondent, and both sought sole custody. In 2004, after an evidentiary hearing, the district court denied both motions, preserving the joint custody arrangement.

Appellant’s basis for appealing was based upon his contentions that he did not have to prove endangerment, and that he was entitled to preference over Respondent being the child’s natural parent. The Court of Appeals affirmed, ruling that had Appellant sought to change the child’s residence, he would not have had to prove endangerment. But he was seeking custody modification, which involves the higher evidentiary burden of showing endangerment. The Court of Appeals also affirmed regarding the parental presumption, upholding previous case rulings that the presumption in favor of a natural parent can be overcome by compelling circumstances, and that in this case, the previous stipulation of the parties and subsequent lapse of time comprised sufficiently compelling circumstances to overcome the parental presumption.