Joyce Elaine Hansen v. Jeffrey Ray Hanson, Joni Michelle Herdrich

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1063

Joyce Elaine Hansen, petitioner,
Appellant,

vs.

Jeffrey Ray Hanson,
Respondent,

Joni Michelle Herdrich,
Respondent.

Filed July 13, 2015
Reversed and remanded
Kirk, Judge

Dakota County District Court
File No. 19AV-FA-13-2663

Christopher M. Banas, Banas Family Law, P.A., Lilydale, Minnesota (for appellant)

Matthew T. Majeski, Majeski Law, LLC, Woodbury, Minnesota (for respondent Jeffrey
Ray Hanson)

Joni Michelle Herdrich, Little Canada, Minnesota (pro se respondent)

Considered and decided by Connolly, Presiding Judge; Chutich, Judge; and Kirk,

Judge.
 UNPUBLISHED OPINION

KIRK, Judge

Appellant-grandmother Joyce Elaine Hansen challenges the district court’s denial

of her petition for visitation with her two minor grandchildren, arguing that visitation is

in the children’s best interests and would not interfere with father’s relationship with the

children. Because grandmother met her burden of proof showing these two factors under

Minn. Stat. § 257C.08, subd. 3 (2014), the district court abused its discretion in not

granting her visitation, and we reverse and remand to the district court.

FACTS

Respondent-father Jeffrey Ray Hanson and respondent-mother Joni Michelle

Herdrich, who never married, are the biological parents of the minor children N.G.H. and

T.R.H.1 After the state removed the children from mother’s care, father assumed

parenting duties and moved into grandmother’s home with N.G.H. in May 2009,

followed by T.R.H. in October. During this period, father was granted sole legal and sole

physical custody of the two small children. Prior to moving in with grandmother, father

testified in a deposition that he spent time in jail and was living “on the street, house to

house.”

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

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Herdrich, who is a named party to this appeal, did not participate in the district-court
proceedings.

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dental insurance for the children, took the children to athletic activities, and took the

children to doctor’s appointments (including psychological services).

In 2010, father began a relationship with Vicky Dahlberg, T.R.H.’s daycare

provider, who lived across the street from grandmother’s residence. Around October

2012, father and the children had transitioned to living full time at Dahlberg’s residence.

After this time, the children continued to spend significant amounts of time with

grandmother.

On August 28, 2013, grandmother filed a petition requesting that the district court

award her reasonable and liberal visitation with the children. In October, the parties

voluntarily entered into mediation, and stipulated to a temporary visitation schedule

where the children would visit grandmother overnight once per month and after school to

5:00 p.m. once a week. The parties also agreed to go to counseling to improve their

communication and boundary-setting skills.

On February 26, 2014, the district court held an evidentiary hearing on

grandmother’s petition where the parties and other witnesses testified. Both parties were

represented by counsel. The district court accepted exhibits submitted by father, which

included documents and emails from N.G.H.’s teachers regarding his behavior at school,

and email correspondence between the parties. Grandmother submitted into the record an

exhibit of a proposed visitation schedule and a copy of father’s deposition taken on

September 30, 2013. Grandmother’s proposed visitation schedule was more expansive

than the October 2013 temporary visitation schedule, as she requested visitation time

including every other full weekend and a weeknight, two weeknights every other

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alternating week, two non-consecutive weeks during summer vacation, and alternating

holidays.

In April, the district court issued an order denying grandmother’s petition and

vacating the October 2013 temporary order, concluding that court-ordered visitation was

not in the best interests of the children and it would interfere with father’s relationship

with the children. Focusing on grandmother’s conduct, the district court pointed out that

grandmother had undermined father’s relationship with the children by refusing to

discipline the children “in any way” and by telling them that they didn’t have to listen to

father or Dahlberg, and that N.G.H.’s behavior at school had worsened after visiting

grandmother. The district court granted father complete discretion in determining how

much, if any, visitation occurred between grandmother and the children.

Grandmother appeals.

DECISION

A district court has broad discretion in determining custody matters. In re Custody

of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002). “Appellate review of custody

determinations is limited to whether the district court abused its discretion by making

findings unsupported by the evidence or by improperly applying the law.” Id. A

grandparent of a minor child may petition for visitation rights if the child resided with

the grandparent for at least one year and was subsequently removed from the home by

the minor’s parents. Minn. Stat. § 257C.08, subd. 3. The district court “shall” grant the

grandparent’s petition if it finds by clear and convincing evidence that visitation rights

would be in the best interests of the child and would not interfere with the parent-child

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relationship. Id.; see SooHoo v. Johnson, 731 N.W.2d 815, 823 (Minn. 2007). We

defer to the district court’s credibility determinations. Sefkow v. Sefkow, 427 N.W.2d

203, 210 (Minn. 1988).

Grandmother argues that the district court clearly erred in finding that she

undermined father’s relationship with his children. To the contrary, grandmother points

out that the record demonstrates that she fostered a healthy relationship between father

and the children. After a careful review of the record, we are persuaded by

grandmother’s argument.

The district court’s findings that visitation would interfere with the parent-child

relationship are not supported by the record. Father alleged that grandmother made

repeated derogatory statements about Dahlberg. But there is no other evidence in the

record supporting this allegation. Father testified at the deposition that he did not know

for a fact that grandmother made the alleged statements and that it was possible that the

children were simply voicing their opinions about the current situation. Grandmother

denied making the statements. At the time of the hearing, N.G.H. and T.R.H. were eight

years old and six years old, respectively, and were not questioned by the district court

about these statements, which was appropriate given their young ages.

When determining whether visitation would interfere with the relationship

between the children and parent, relevant factors have included the suitability of the

grandparent’s house for visitation, the quality of previous visitation, whether the

children experienced behavioral problems after visitation, and the amount of proposed

visitation time. See Gray v. Hauschildt, 528 N.W.2d 271, 273-74 (Minn. App. 1995).

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 Here, grandmother was instrumental in providing a stable, secure environment for

father to parent and reside with his children in her home when he was granted full

custody after they were placed in foster care. She acted as the primary caretaker for two

children in their formative years. There is no evidence in the record that grandmother’s

house is inappropriate for visitation, and father admitted that the weekly visitations

between October 2012 and May 2013 were working “generally well.” Evidence

concerning the children’s behavioral problems after visitation was at best weak; father

testified that the children were “anxious” after an overnight visit with grandmother, but

he admitted that it was possible that the children’s behavior could be attributed to other

factors unrelated to the visitation. There is no evidence that T.R.H. experienced any

difficulties at school related to the visits, and N.G.H.’s school records do not

demonstrate a clear link between the visits and his behavior at school. Rather, the record

clearly establishes that N.G.H.’s behavioral problems predate his court-ordered visits

with grandmother. With this said, we recognize that grandmother’s proposed visitation

schedule is significantly greater than other grandparent-visitation cases. For example, in

Rohmiller v. Hart, we affirmed a district court’s determination that visitation of one

weekend each month was appropriate. 799 N.W.2d 612, 615 (Minn. App. 2011), aff’d,

811 N.W.2d 585 (Minn. 2012).

Turning to the best-interests factors, “[o]ne of the strongest justifications for

grandparent visitation is to encourage the continuation of lasting bonds and a sense of

security for children.” In re Santoro, 594 N.W.2d 174, 178 (Minn. 1999). Grandmother

argues that court-ordered visitation is in the best interests of the children. After

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reviewing the record, we are unable to determine if the district court focused on the

children’s best interests. The district court implicitly credited father’s testimony that

visitation was not in the best interests of the children, but disregarded his testimony that

the children love their grandmother, that she is, for all intents and purposes, a good

grandmother, and that the children would benefit from seeing her. Given the children’s

relatively young ages, it is understandable why the district court did not make findings

regarding N.G.H.’s and T.R.H.’s preferences regarding visitation. See id. at 178. But

the district court did not credit father’s testimony that the children expressed to him that

they enjoyed spending time with their grandmother.

The record also does not support the district court’s conclusion that grandmother

failed to discipline the children “in any way” while they were in her care. A review of

the record demonstrates neither party was an effective disciplinarian, and they did not

agree on how to discipline the children, especially with regard to N.G.H.’s behavioral

issues. Grandmother testified that she implemented time-outs and calming techniques

when disciplining N.G.H. Traditionally, parents, not grandparents, are the primary

disciplinarians of their children, and the question of whether a grandmother can spend

time with her grandchildren should not turn on her ability to discipline the children

during a visit.

By all accounts, grandmother has played an important role in the children’s lives

since they were very young. We conclude on the record before us that the district court

erred in failing to recognize that it is in the best interests of the children to preserve the

bond that they have developed with their grandmother. On this record, grandmother met

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her burden of demonstrating by clear and convincing evidence that court-ordered

visitation would not interfere with father’s parent-child relationship and that visitation

was in the best interests of the children. See Minn. Stat. § 257C.08, subd. 3. We reverse

the denial of visitation and remand to the district court with instructions to issue an order

granting grandmother a reasonable amount of visitation time with the children, within

the court’s discretion. We also remind the parties that “specific terms of judicially

ordered visitation are no substitute for flexibility and cooperative arrangements in the

child’s best interests.” In re C.D.G.D., 800 N.W.2d 652, 663 (Minn. App. 2011), review

denied (Minn. Aug. 24, 2011).

Reversed and remanded.

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