In Re the Custody of N.I.O. Jeremiah R. Peck v. Melanie A. Sauter

This opinion will be unpublished and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
A15-2070

In Re the Custody of N.I.O.
Jeremiah R. Peck, petitioner,
Respondent,

vs.

Melanie A. Sauter,
Appellant.

Filed July 18, 2016
Affirmed
Connolly, Judge

Polk County District Court
File No. 60-FA-14-2026

Jeremiah R. Peck, Tucson, Arizona (pro se respondent)

Patti J. Jensen, Rachel C. Prudhomme, Galstad, Jensen & McCann, P.A., East Grand Forks,
Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Connolly, Judge; and

Muehlberg, Judge.


Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by
appointment pursuant to Minn. Const. art. VI, § 10.
 UNPUBLISHED OPINION

CONNOLLY, Judge

In this grandparent visitation dispute, appellant-mother argues that respondent-

father failed to show that grandparent visitation is in the child’s best interests; respondent

did not show that grandparent visitation would not interfere with the mother-child

relationship; and the district court should not have granted visitation to nonintervening

grandparents. We affirm.

FACTS

In 2004, respondent Jeremiah Peck moved from Grand Forks, North Dakota to

Tucson, Arizona where he currently resides. His parents, R.P. and C.P. (respondent’s

parents), still live in Grand Forks, North Dakota. Appellant Melanie Sauter and respondent

had a romantic relationship prior to the birth of their child, N.I.O., who was born in 2007.

The relationship ended in 2007 shortly after the birth of N.I.O. and appellant subsequently

married another man on October 8, 2011. Appellant currently resides with the child in East

Grand Forks, Minnesota. Respondent’s parents reside approximately five miles from

appellant. It is estimated that respondent’s parents saw N.I.O. approximately 60 times

between N.I.O.’s birth and July 2012.

In July 2012, appellant became upset with respondent’s parents when they showed

N.I.O. a picture of respondent and told him that it was a picture of his father. Appellant

testified that her problems with the grandparents were (1) that they told N.I.O. that

respondent was his father without her consent and (2) that respondent’s parents told

appellant that they should get visitation with N.I.O. on Father’s Day because they are the

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paternal grandparents. Appellant told respondent’s parents that she did not want them to

see N.I.O. and completely cut off contact between them and the child.

On November 3, 2014, respondent filed a petition to establish custody and parenting

time with the district court. He requested that his parents be given visitation time with

N.I.O. At the district court hearing on August 13, 2015, appellant testified that she had no

problem with visitation with the grandparents as long as they support the current family

unit. When the district court judge asked “I understand from your testimony that you do

agree that it’s important for [N.I.O.] to have a relationship with his grandparents. Is that

correct?” appellant responded “Yes.” Appellant thought a schedule of every three months

would be sufficient to give respondent’s parents time to develop a relationship with N.I.O.

The district court granted respondent’s parents visitation with N.I.O. once a month on

either a Saturday or Sunday between 10:30 a.m. and 7:00 p.m. beginning in January 2016.

DECISION

We review visitation orders for an abuse of discretion. SooHoo v. Johnson, 731

N.W.2d 815, 825 (Minn. 2007). When reviewing visitation orders, “we must determine

whether the court made findings unsupported by the evidence or improperly applied the

law.” Id. We will not set aside the district court’s findings unless they are clearly

erroneous. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999). “A

finding is clearly erroneous if we are left with the definite and firm conviction that the court

made a mistake.” SooHoo, 731 N.W.2d at 825. We do not disturb findings that are

supported by reasonable evidence. Fletcher, 589 N.W.2d at 101. In grandparent-visitation

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cases, the district court does not have to make the same detailed analysis as is required in

custody determinations. In re Santoro, 594 N.W.2d 174, 178 (Minn. 1999).

The district court granted visitation rights to respondent’s parents under Minn. Stat.

§ 257C.08, subd. 2 (2014), which states

the [district] court may, upon the request of the parent or
grandparent of a party, grant reasonable visitation rights to the
unmarried minor child . . . if it finds that: (1) visitation rights
would be in the best interests of the child; and (2) such
visitation would not interfere with the parent-child
relationship. The court shall consider the amount of personal
contact between the parents or grandparents of the party and
the child prior to the application.

Appellant argues that the district court abused its discretion in determining that grandparent

visitation is in the best interest of N.I.O. and that it abused its discretion in determining that

the visitation would not interfere with the parent-child relationship.1

I. Did the district court err in finding that grandparent visitation is in the best
interest of the child?

In determining whether grandparent visitation is in the best interest of the child, the

court must consider the personal contact between grandparents and grandchild. Olson v.

Olson, 534 N.W.2d 547, 550 (Minn. 1995). “The [district] court has broad discretion to

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Appellant also argues that the district court erred in granting grandparent visitation to
respondent’s parents when respondent’s parents did not intervene in the proceeding. A
reviewing court generally considers only those issues that the record shows were presented
to, and considered by, the district court in deciding the matter before it. Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988). “Nor may a party obtain review by raising the same
general issue litigated below but under a different theory.” Id. There is no evidence that
appellant challenged respondent’s request that his parents be awarded grandparent
visitation on the ground that the grandparents did not intervene as parties in the proceeding
below. As a result, this issue is not properly before the court, and we decline to address it.

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determine what is in the best interests of the child in the area of visitation and its

determination will not be overturned absent an abuse of discretion.” Id. In this case, the

district court determined that respondent’s parents had frequent contact with N.I.O.

following his birth; they developed a close and loving relationship with him beginning with

a visit to the hospital soon after he was born; they saw him one to two times a month and

talked to him on the telephone; they attended his birthday parties; and, on occasion,

provided daycare for him. The district court credited testimony that between the birth of

N.I.O. and July 2012, respondent’s parents saw N.I.O. approximately 60 times. The district

court concluded that visitation between N.I.O. and respondent’s parents would be in

N.I.O.’s best interest because of respondent’s parents’ desire to have a relationship with

N.I.O., their involvement in the first four years of his life, and appellant’s belief that N.I.O.

should have a relationship with them.

Appellant, citing In re Santoro, argues that because previous contacts between

respondent’s parents and N.I.O. were primarily during N.I.O.’s infancy, infrequent and

short, and because, according to appellant, respondent’s parents voluntarily ended their

grandparent relationship with N.I.O. in 2012, there is no proof of a present bond nor

attachment of N.I.O. to his paternal grandparents. The district court determined that the

reason that respondent’s parents did not to reach out and contact N.I.O. was due to

appellant’s request that they do not do so. Despite appellant’s allegations, no written

correspondence exists in the record of respondent’s parents voluntarily ending their

grandparent relationship with N.I.O. in 2012. The correspondence appellant referenced

merely requests that some items for infants, no longer needed by N.I.O., be returned. We

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conclude that the act of requesting items back that were not in use does not make the district

court’s decision that respondent’s parents still wanted to have a relationship with the child

clearly erroneous.

Moreover, appellant fails to address her comments to the district court that she

thinks that “frequent consistent visits in conjunction with [respondent’s] visits and also

communication with [N.I.O.]” would be in the best interests of the child. In response to

the question “So you would allow visitation of grandparents with consistency based upon

[respondent’s] consistency in his life?” appellant responded “[C]onsistency for

[respondent], and as for [respondent’s] parents, I don’t think they need to – yes, consistency

wouldn’t hurt him but it doesn’t have to be more than once every three months. What

grandparent sees their kid – their grandkids every month?” Appellant makes no argument

for why it is in the child’s best interest to have a relationship with respondent’s parents

once every three months, but not in the child’s best interest to see respondent’s parents

every month. We conclude that the district court’s grant of grandparent visitation once a

month is in the best interest of the child and is not an abuse of discretion.

II. Did the district court err in concluding that grandparent visitation would not
interfere with appellant’s parent-child relationship?

Appellant argues that the district court erred in concluding that grandparent

visitation would not interfere with appellant’s parent-child relationship. The district court

concluded that “there is no evidence that visitation between [respondent’s] parents and

[N.I.O.] once per month as provided in this order would interfere with [appellant’s] parent-

child relationship with [N.I.O.].” Appellant argued to the district court that the parent-

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child relationship would be interfered with because respondent’s parents would cause

confusion by inappropriately encouraging N.I.O.’s involvement with his father and

concealing respondent’s voluntary absence. Additionally, appellant argued that it would

interfere with the parent-child relationship because respondent’s parents had undermined

her husband’s role as step-father and the importance of her family unit to the minor child.

Appellant argues that the district court was required to make specific findings to support a

decision overriding appellant’s wishes, which it did not.

A parent has the fundamental right to make parenting decisions, including deciding

who spends time with the child. That right has long been recognized in the common law

and is constitutionally protected. See Olson, 534 N.W.2d at 549 (citing common-law

precedent and observing that “[h]istorically, grandparents had virtually no legal right to

maintain a relationship with a grandchild independent of the wishes of the child’s parents”).

The United States Supreme Court has held that the due-process clause of the Fourteenth

Amendment protects the fundamental right of parents to make decisions as to care, custody,

and control of their children. SooHoo, 731 N.W.2d at 820. Our supreme court has required

that a third-party visitation statute is required to adhere to three guiding principles in order

to be constitutional. Rohmiller v. Hart, 811 N.W.2d 585, 595 (Minn. 2012). “[T]he statute

must give some special weight to the fit custodial parent’s decision regarding visitation.

Second, there can be no presumption in favor of awarding visitation. Third, the court must

assert more than a mere best-interest analysis in support of its decision to override the fit

parent’s wishes.” Id. (citations omitted).

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 In this case, the issue is whether the district court asserted only a best-interest

analysis in support of its decision to override appellant’s wishes regarding visitation. In

Rohmiller, a case in which an aunt sought a visitation order, our supreme court determined

that the district court only applied a best-interest analysis and therefore erred. Id. at 595-

96. In that case, the district court stated “[v]isitation between . . . [the aunt] and the child

is in the child’s best interest and will not interfere with the parent-child relationship of [the

mother] and the child.” Id. at 595. The supreme court determined that this was merely a

best-interest analysis. Id. However, in this case, the court did more than issue a conclusory

statement that there will be no interference with the parent-child relationship, but rather

stated that “[t]here is no evidence that visitation between [respondent’s] parents and

[N.I.O.] once per month . . . would interfere with [the] parent-child relationship.” This

analysis of the record, in addition to appellant’s agreement that some form of visitation

with the child is appropriate, is sufficient to conclude that the district court did not clearly

err in finding that there would be no interference with the parent-child relationship.

We conclude that the reasons stated in appellant’s brief regarding interference with

the parent-child relationship, i.e., confusion of the child by disclosures of parentage,

facilitation of contact with the father, and undermining her husband’s role as a step-father

and the importance of her family unit to N.I.O., exist regardless of whether visitation is

once every three months or whether visitation is every month. The claim that visitation on

a three-month basis does not interfere with a parent-child relationship but a monthly

visitation schedule would interfere with the relationship is not supported by the record.

Furthermore, several decisions of this court support an order of visitation for one day each

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month. See Gray v. Hauschildt, 528 N.W.2d 271, 274 (Minn. App. 1995) (affirming an

order for monthly, two-day, single-overnight grandparent visitation); Foster ex rel. J.B. v.

Brooks, 546 N.W.2d 52, 53-54 (Minn. App. 1996) (affirming the district court’s reduction

of grandparent visitation to one Sunday each month). These decisions support our

conclusion that the award of visitation rights to respondent’s parents once every month as

opposed to every three months is not an abuse of discretion.

Affirmed.

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