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Bredeson v. Mackey

Supreme Court of North Dakota

February 13, 2014

Lindsey BREDESON, Plaintiff and Appellee
v.
Kyle MACKEY, a/k/a Kyle T. Mackey, Defendant and Appellant.

Rehearing Denied March 11, 2014.

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[Copyrighted Material Omitted]

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R. Scott Stewart, Langdon, ND, for plaintiff and appellee; submitted on brief.

Kyle Mackey, self-represented, Jamestown, ND, for defendant and appellant; submitted on brief.

McEVERS, Justice.

[¶ 1] Kyle Mackey appeals from a district court order denying his motion to modify parenting time and petition for non-parental visitation. We conclude the district court did not err in finding that Kyle Mackey failed to establish a material change in circumstances justifying a modification of Kyle Mackey's parenting time. We also conclude the district court did not err in finding that exceptional circumstances did not exist justifying non-parental visitation for Amber Mackey. We affirm.

I

[¶ 2] Kyle Mackey and Lindsey Bredeson have one minor child together, O.B., born in 2010. Kyle Mackey and Lindsey Bredeson were never married. Lindsey Bredeson has exercised residential care and primary decision-making responsibility since O.B.'s birth. Kyle Mackey is currently incarcerated in James River Correctional Center for Gross Sexual Imposition, a class AA felony, and was sentenced prior to O.B.'s birth to a term of fifteen years imprisonment with seven years suspended for five years.

[¶ 3] On January 23, 2013, the district court granted Lindsey Bredeson complete discretion regarding Kyle Mackey's in-person parenting time at the secured facility with O.B. while he is incarcerated and as O.B. progresses. Specifically, the court found " the child has aged and become more aware of her surroundings and that visitations at James River Correctional Center have been upsetting to the child who is now Twenty-six (26) months." The district court required Lindsey Bredeson allow Kyle Mackey telephonic or other electronic contact with O.B. while he is incarcerated. Kyle Mackey did not appeal the district court's initial order regarding parenting time. Kyle Mackey married Amber Mackey on April 12, 2013. On April 22, 2013, Kyle Mackey moved to modify parenting time claiming Lindsey Bredeson had denied him all visitation for the months of January, February, March, April, and May. On May 17, 2013, Kyle Mackey petitioned for non-parental visitation requesting visitation for Amber Mackey alleging a psychological bond between Amber Mackey and O.B. Lindsey Bredeson married Kraig Gellner on May 18, 2013. On June 27, 2013, the district court denied Kyle Mackey's motion to modify parenting time and petition for non-parental visitation. The district court found Kyle Mackey had not established a material change of circumstances occurred since the court's prior visitation order issued a few months earlier. The district court also found exceptional circumstances did not

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exist justifying non-parental visitation as Amber Mackey did not have a long standing relationship with O.B. Kyle Mackey appeals.

II

[¶ 4] Kyle Mackey argues the district court clearly erred in finding (1) he had failed to establish a material change of circumstances to grant his motion to modify parenting time; and (2) no exceptional circumstances existed to support granting his petition for non-parental ...


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