In Re Santoro

PAGE, Justice

(dissenting).

I respectfully dissent. The issues presented in this case require this court to complete two tasks. First the court, consistent with Minn.Stat. § 257.022, subd. 1 (1998) and our abuse of discretion standard of review, see Olson v. Olson, 534 N.W.2d 547, 550 (Minn.1995), must decide this case. Second, the court’s decision must give guidance to our lower courts and the practicing bar to assist them in determining what constitutes the best interests of the child in order to ensure that future grandparent visitation cases are properly decided. Unfortunately, the court’s decision fails to do either. In concluding that the Santoros are not entitled to reasonable visitation with A.B. and N.B., the court gives lip service to the requirements of section 257.022, subd. 1, and then substitutes its judgment for that of the district court in order to hold that the district court abused its discretion. In the process, the court encourages those who would oppose a grandparent’s visitation to engage in conduct that, under any definition, is not in the best interests of children.

As it relates to these parties, the issue is whether reasonable visitation between A.B. and N.B. and their maternal grandparents, the Santoros, is in A.B. and N.B.’s best interest. Presumably, that which is in their best interest will provide some benefit to them and that which is not will cause harm to them or have some other negative impact on them. In concluding that visitation between A.B. and N.B. and the Santoros is not in A.B. and N.B.’s best interest, the court, beyond noting that there was a seven-year period of no personal contact between the children and the Santoros, that A.B. and N.B.’s preference was not to have visitation, and the children’s ages, fails to explain how visitation would harm or otherwise negatively impact A.B. and N.B.1 Moreover, there is nothing in the record to suggest that it would.

The grandparent visitation statute requires the district court to consider the amount of personal contact between the grandparent and the child before the application for visitation in determining whether visitation is in the best interests of the *180child and in determining the reasonableness of any visitation granted. See Minn. Stat. § 257.022, subd. 1 (stating that the district court “shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application” and that grandparents “may be granted reasonable visitation rights”). The court, in reviewing the district court’s decision in this case, merely asserts that the temporal gap in contact between A.B. and N.B. and the Santoros is too long, and therefore visitation is not in A.B. and N.B.’s best interests. Unfortunately, the court provides no analysis of how or why the gap in contact will have a negative impact or result in harm to A.B. and N.B. if visitation with the Santoros is granted. In addition, the court fails to explain what it is about the gap in contact that warrants denying visitation altogether. By this decision, the court announces a rule that any time there is a lengthy gap in contact between children and their grandparents, visitation is per se not in the children’s best interest. This rule is unwarranted.

A.B. and N.B.’s preferences regarding visitation are also factors to be considered in determining whether visitation is appropriate. But their preferences should not be considered in a vacuum. Given the evidence that the district court had in front of it regarding the Borgstroms’ efforts to poison A.B. and N.B.’s view of the Santoros, any preference stated by them must be considered with the Borgstroms’ conduct in mind.2 The district court conducted an in camera interview with A.B. and N.B. and apparently did just that. Given the district court’s broad discretion, it cannot be said that the district court abused its discretion in discounting A.B. and N.B.’s preferences.

Finally, the court cites A.B. and N.B.’s ages as a reason for denying, the Santoros visitation. Although it is possible that their ages might present some practical problems in creating a reasonable visitation schedule, those problems, whatever they might be, do not justify a complete denial of visitation.

The real issue in this case is whether the district court abused its discretion in awarding the Santoros visitation. The district court considered A.B. and N.B.’s preferences and ages, as well as the amount of personal contact between the Santoros and the children before the Santoros made their application for visitation, in concluding that visitation was appropriate. In considering the amount of personal contact, the district court looked at the Santo-ros’ efforts to have contact with the children after their daughter’s death, and the fact that “[a]ll attempts at contact between the children and the [Santoros] were thwarted by the Borgstroms.” The district court also considered the guardian ad litem’s strong recommendation, made after the guardian conducted a full investigation and spent time supervising actual visits between the children and the Santoros, that visitation should be granted. As I read the record before us, it is clear to me that there is nothing in it that supports the notion that visitation between A.B. and N.B. and the Santoros should be absolutely barred as not being in A.B. and N.B.’s best interests.3 The simple fact is that the district court did not abuse its broad dis*181cretion in awarding the Santoros visitation.4

As important, if not more important than how this case is resolved for these children and these grandparents, is the fact that today’s decision by the court eviscerates the grandparent visitation statute. It does so by condoning the admittedly “reprehensible” conduct of the Borgs-troms, who the district court found “actively, vindictively and without reason obstructed any contact whatsoever between the Santoros and the minor children.” The court should not dismiss the importance of rewarding the Borgstroms’ conduct because rewarding that conduct will have the practical effect of opening the door for all custodial parents to stand in the way of reasonable visitation by grandparents.5 The Borgstroms’ conduct provides a roadmap of how to close the door on those grandparents who, absent the obstructionist conduct of the custodial parents, would otherwise be legally entitled to visitation. By putting its stamp of approval on this conduct, the court, whether intending to or not, is sending a strong message that this type of conduct is not only in the best interests of A.B. and N.B. but also that it is in the best interests of all children involved in grandparent visitation cases. In fact, the conduct engaged in by the Borgstroms is not in any child’s best interests.

. In fact, the evidence in the record suggests that visitation would be beneficial to A.B. and N.B. For example, the guardian ad litem noted in his October 1996 report that "the children enjoy themselves in the presence of the Santoros” and that "[A.B.] has shown a deep interest in knowing about her mother when she has visited with the Santoros.”

. The court contends that the Borgstroms "facilitated” ten visits between A.B. and N.B. and the Santoros. Based on the record, it is difficult for me to conceive of a less appropriate description for the Borgstroms’ conduct. In fact, according to the guardian ad litem, the Borgstroms continually hindered visitation by belittling and condemning the Santo-ros in front of the children and by "delaying, blocking, changing and canceling visitations” arranged by the visitation supervisor.

. In support of its conclusion that the district court abused its discretion, the court states that the district court "made only conclusory statements that the children's best interests would be served by visitation.” We grant district courts broad discretion to make best interests determinations and uphold those determinations when the evidence on the record supports them. See Olson, 534 N.W.2d at 550.

. It may be that the specter of certain nonspecific allegations of abuse of Elizabeth San-toro and Lisa Borgstrom on the part of the Santoros has influenced the court’s decision. The district court had before it conflicting evidence regarding allegations that the Santo-ros had abused two of their children; Elizabeth Santoro testified that she had been abused as a child and the Borgstroms testified that Lisa Borgstrom told them that she had been abused by her parents, but the guardian ad litem testified that he spoke to the Santo-ros’ two other adult children, who told him that they had “absolutely no concerns about the way the children are cared for.” The guardian was present during supervised visitation and reported no evidence of or concern about abuse. We give district courts broad discretion precisely because they are in the best position to determine which witnesses are credible and to weigh the evidence. See In re D.L., 486 N.W.2d 375, 380 (Minn.1992) (citation omitted) (stating that "the trial court retains broad discretion because of its opportunity to observe the parties and hear the witnesses”). Furthermore, to the extent that the allegations of abuse form the basis of the court’s decision to completely bar visitation, I note that reasonable visitation as permitted by section 257.022, subd. 1, can be structured in' a manner that would address those concerns.

. The court’s response to this criticism is to say that this argument focuses on the behavior of the Borgstroms rather than on the best interests of A.B. and N.B. True, the analysis takes into account the actions of the Borgs-troms in assessing the best interests of A.B. and N.B., but I believe it is impossible to address their best interests while ignoring the conduct of the Borgstroms.

The legislative history supports this conclusion. In discussing the factors that a district court should consider in making the best interests determination, the legislature apparently did not include a specific reference to the best interests factors from Minn.Stat. § 518.17 (1998) (listing factors to be used in custody determinations) because the courts might construe the reference as limiting a district court’s inquiry to only those factors and because those factors might not be exhaustive of the types of factors that should be considered when making determinations regarding visitation. See Hearing on H.F. 790, H. Jud. Comm., 69th Minn. Leg., Feb. 11, 1976 (audio tape) (statement of Rep. Neil B. Dieterich).