Williams Divorce and Family Law

Gerald O. Williams, Attorney

Recent Court Rulings

Minnesota Association for Justice Divorce and Family Law Columns

Spring 2007

Supreme Court

Third Party Custody

In re the Matter of SooHoo v. Johnson

(Filed May 10, 2007)

Respondent SooHoo sought custody and (alternatively) visitation of the two children that Appellant Mother had adopted and raised during the parties’ 22-year domestic partnership. The district court denied Respondent’s request for custody, but granted Respondent’s request for visitation. The Court of Appeals affirmed.

The Supreme Court ruled that the third party custody statute is unconstitutional in its imposition on a parent’s fundamental right to the care, custody and control of his or her child. The Court ruled that the third party petitioner must have a burden to establish by clear and convincing evidence that the petitioner’s visitation would not interfere with the parent-child relationship.

The Supreme Court affirmed the granting of visitation to Respondent, ruling that the statute was properly applied in this case, that the amount of visitation granted to Respondent was reasonable, and that Appellant was not entitled to an evidentiary hearing on the issue of visitation. Finally, the Supreme Court reversed the requirement that Appellant receive counseling because there was finding that such counseling was in the best interests of the children.

Court of Appeals

Parenting Consultant

Frivolous Litigant

Szarzynski v. Szarzynski

(Filed May 22, 2007)

The district court granted Respondent Mother’s request to remove a parenting consultant for “good cause.” Appellant Father argued on appeal that the district court erred by removing the parenting consultant based upon a statutory standard that applies to parenting time expeditors. The Court of Appeals affirmed, ruling that the district court is not precluded from exercising reasonable discretion to remove a parenting consultant, whose appointment and authority is not set forth in statute. Therefore, the fact that the district court referenced the parenting time expeditor standard for removing the parenting consultant was impertinent.

Appellant also appealed from the finding that he was a “frivolous litigant,” arguing that he was not afforded the proper process pursuant to Rule 9 of the Minnesota Rules of General Practice. The Court of Appeals ruled that Appellant had not been afforded the proper process, and reversed and remanded accordingly.

Temporary Child Custody in Domestic Abuse Proceedings

Beardsley v. Garcia

(Filed May 22, 2007)

Appellant Mother petitioned for a Domestic Abuse Order for Protection against Respondent Father. Respondent did not contest the issuance of the Order, but requested parenting time of one of Appellant’s children, for which the parties had both signed a Recognition of Parentage. The district court issued the Order for Protection and also provided Respondent with supervised parenting time. Appellant sought review from the Court of Appeals, arguing that the district court lacked subject matter jurisdiction and statutory authority to award Respondent parenting time.

The Court of Appeals affirmed, ruling that the district court did not lack subject matter jurisdiction. The Court of Appeals also ruled that Respondent was not seeking a parenting time order pursuant to Minn. Chapter 518; and therefore, fitting within the confines of Chapter 518B, the award of parenting time is aptly temporary and subject to modification under Chapter 518B (rather than the higher thresholds of modifications pursuant to Chapter 518).