Monday, September 14, 2015

Family Law Service Learning Case Summaries - Summer Term 2015 - Karina Patino

Family Law Service Learning Case Summaries - Summer Term 2015 - Karina Patino



NAME: Karina Patino
LINK FOR OPINION: http://mn.gov/web/prod/static/lawlib/live/archive/ctappub/0108/cx001967.htm

TITLE: Minnesota: Appeals Court Holds that the mother did not submit enough evidence for unsupervised visits.

CITATION

Braith v. Fisher, 632 N.W.2d 716, 721 (Minn. App. 2001).

PARTIES

Laure Jean Fisher (Appellant)
David F. Braith (Respondent)

FACTS

            M.L.F. is the minor child of appellant Laure Fisher and Respondent David Braith the appellant terminated the relationship with respondent. The respondent was not aware that he has fathered a child until one month after the birth of the child. The respondent was adjudicated the father of the minor by court order dated June 18, 1997 with that same order the appellant received sole legal and physical custody subject to supervised visitation by respondent, as scheduled by the guardian litem.

            Therefore the supervised visitation was ordered in light of respondents’ limited contact with the minor and limited experience as a parent, and was viewed as a way of establishing a parent-child bond. The court as the guardian ad litem appointed Christine M. Davis.  The appellant did not cooperate with the visitation schedule and in August 1997, respondent brought a motion for contempt subsequently denied by the district court. In July 8, 1998 hearing, respondent again sought the district court involvement with the visitation issue, and requested of the removal of the current guardian at litem.

            After the court hearing the court modified the current visitation schedule and increased the frequency of the supervised visitations. In addition to the modification the court granted the respondents plea to remove the current guardian at litem. Once again the appellant failed to cooperate with the visitation schedule during the periods of September 11-December 16, 1998. The new guardian ad litem Lori Ann Harold brought a motion to show cause why appellant should not be held in contempt. Even after the plea was made the court found the appellant in contempt and ordered her to comply with the current visitation rights or face jail time. In addition the guardian as litem requested more supervised visitations so that she can make her final decision in regards to unsupervised visitations.

            During the trial process the appellant also brought up allegations that the minor had been sexually abused by the respondent but after further investigation the court found no evidence. The appellant also failed to appear in court and stated she had witnesses proving why she could not be in court the specified day. The court denied to hear testimony and did not allow it.

            After there was a full physiological exam had been completed on the minor and with recommendations from appointed supervisors lastly the court granted the respondent to unsupervised visitation to commence August 31,2000.

ISSUES

       I.            Did the district court abuse its discretion by awarding respondent unsupervised visitation with the miner following the October 23, 2000 hearing?

    II.            Dis the district court abuse by issuing a bench warrant for the appellants failure to appear in response?

 III.            Did the district court err by failing to comply with statutory requirements governing the appointment of a parenting time expeditor?

 IV.            Did the district court demonstrate bias in favor of respondent?

HOLDING

       I.            NO.
            The district court is granted broad discretion to determine what is in the best interest of the child when it comes to visitation. Procedural and evidentiary rulings are within the district courts discretion and are also reviewed under an abuse of discretion standard. Lines v. Ryan, 272 N.W.2d 896, 902 (Minn.1978).

            Insubstantial modifications or adjustments of visitation do not require an evidentiary hearing and are appropriate if they serve in the child’s best interest. The hearing established that it was in the best interest of the child to have unsupervised visitation with the respondent, and the appellant’s actions were only hurting the minor.  To demonstrate those actions the appellant disobeyed this court order by failing to produce the child for visitation from September 11 through mid December 1998.

            The court of appeals concluded that the district court’s orders of October 2 and 25,2000, as they apply to respondent’s entitlement to unsupervised visitation, do not substantially modify the prior visitation orders. In addition the court addressed the appellants argument regarding the sufficiency for the October 23, 2000 hearing. The Minn.Stat. § 518.175 does not specify what type of hearing is required.
            Finally the district courts findings are supported by competent evidence in the record, and the district court appropriately considered the best interest of the child. The district courts rulings are in conformance with the procedural safeguards set out in the statute and therefore, the district court did not abuse its discretion.

    II.            NO.
                        The district court determined, and appellants counsel admitted, that            appellants has proper notice of the order to show cause and the visitation proceedings scheduled for October 23,2000 but intentionally choose not attend.          Therefore the appellants argument is without merit and the district court is          empowered to order appellants arrest for the failure to appear.

 III.            NO
                        Upon the courts own motion, the court may appoint a parenting time                      expeditor under a parenting time order.  There was nothing found in the record to      indicate that a roster of potential expeditors was provided to the parties. But   while the district court apparently omitted a required step, appellant bears the      burden of demonstrating that this error was prejudicial.

            Additionally the appellant has not demonstrated that she was prejudice by the appointed of Morris, other than to disagree with the recommendations. The appellant has not shown the district court error was prejudicial, and the court of appeals concluded that any error in the process of appointing Morris was harmless.

 IV.            NO
                        First the appellant offers no evidence, other than dissatisfaction with the    outcome, of any bias nor any authority for the clam of bias. Second, the issue that            was presented to the district court and the court declined to address the issue.
           

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