Grandparent Visitation: Givens v. Darst

On June 20, 2011, following an appeal by Anthony Darst, the Minnesota Court of Appeals reversed a decision from the district court which had granted substantial visitation rights to Roxanne Givens, the maternal grandmother of Darst’s son.  The district court granted Givens visitation every Tuesday and Thursday afternoon and every other weekend from Friday evening through Sunday evening.  According to the Court of Appeals, the district court's order treated Givens as a noncustodial parent and imposed a schedule that interfered with the father's parent-child relationship.

When the child was only four months old, his mother was murdered by a man she had previously dated.  Less than two weeks after the murder, Givens filed a petition seeking to become the child’s “sole legal and sole physical” custodian.  At the time of filing, Darst was presumed to be the father; however, Givens did not notify him about her petition.  Shortly after filing, the district court designated Givens as the child’s temporary legal and physical custodian.  Upon hearing of the order, Darst served Givens with his petition for judgment of paternity in order to secure his paternal right to sole legal and physical custody of the minor child.

After the temporary custody order was issued in February 2009, the same month that Darst filed his custody petition, the child remained with Givens until the district court’s custody decision in November 2009.  Three months later, Givens petitioned for grandparent visitation under Minnesota Statute 257C.08.  Darst agreed that Givens should have time with her grandson, but he was not in agreement with how much time her petition requested.  The district court’s order granted Givens visitation every Tuesday and Thursday afternoon and every other weekend from Friday evening through Sunday evening.  Darst appealed.

In its decision, the Court of Appeals recognized that parents have a fundamental right to make parenting decisions, including who can spend time with their children, which is a constitutionally protected right.  However, a grandparent of a child whose parent has passed away may petition the court for visitation.  The court has discretion to grant visitation even against the surviving parent’s wishes only if the visitation does not interfere with the parent’s relationship with the child.  The grandparent must prove by clear and convincing evidence that visitation would not interfere with the parent-child relationship.  Here, the Court of Appeals found that the district court abused its discretion when it issued an order that interfered with Darst’s relationship with his son.  The Court of Appeals also found that the district court failed to apply the required presumptions and burdens when making its determination.  Therefore, the Court of Appeals reversed the district court’s decision and remanded with instructions to issue an amended order adopting Darst's proposed schedule with variations to accommodate visitation on or near significant holidays, within the district court's discretion.

For the entire opinion, see http://www.leagle.com/xmlResult.aspx?page=2&xmldoc=In%20MNCO%2020110620198.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7