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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