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S.B. v. Bjerke

Supreme Court of North Dakota

April 29, 2014

In regards to S.B., M.B., and B.B. Diane Bjerke and Robert Bjerke, Plaintiffs
v.
Cory Allen Bjerke and Naomi Sterf, Respondents and Appellants

Appeal fro the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.

Diane Bjerke and Robert Bjerke, plaintiffs; no appearance.

Cory Allen Bjerke (argued) and Naomi Sterf (on brief), self-represented, Albany, respondents and appellants.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice.

OPINION

Page 318

Sandstrom, Justice.

[¶1] Cory Bjerke and Naomi Sterf appeal from a judgment awarding visitation for their three children to the children's paternal grandparents under the grandparent visitation statute in N.D.C.C. § 14-09-05.1. We reverse and remand, concluding N.D.C.C. § 14-09-05.1 requires deference for fit parents' judgment as to the best interests of the children under the grandparent visitation statute.

I

[¶2] The paternal grandparents of the three minor children, born in 1996, 2008, and 2010, sued the children's parents for grandparent visitation, alleging visitation is in the best interests of the minor children and would not interfere with the relationship between the children and their parents. The parents have never been married.

[¶3] At the evidentiary hearing, the grandmother testified that as the oldest child was growing up, she probably spent as much time with her grandparents as she did with her parents. The grandmother also testified their relationship is very close. She testified she did not spend as much time with the middle child as she did with the oldest, but she did spend time with the middle child and has a very good relationship with her. She testified that after the youngest child was born, the grandparents had a falling-out with the parents and did not get to see the youngest child as much. They nevertheless got to know the youngest child, the grandmother testified, and she has a very good relationship with the child.

[¶4] The grandmother testified the parents stopped letting her and the grandfather see the children because the parents accused her of calling the police department and reporting them, which she denies. She testified she never made negative comments about the parents in front of the children and is concerned about the impact on her grandchildren if the grandparents continue to be absent from their lives. The grandfather testified similarly.

[¶5] The father testified there is tension with the grandparents and they have created " negative situations." He testified

Page 319

the two youngest children have a minimal relationship with their grandparents and the children are not suffering from their grandparents' absence. The father also testified court-mandated visits would only " feed fuel to the fire." Both parents testified the grandparents undermine their authority as parents. The mother testified that if the situation with the grandparents is resolved, she will allow visitation with the younger children. The father likewise testified that if the situation resolves, the children again will have a relationship with their grandparents.

[¶6] After the hearing, the court ordered extensive grandparent visitation. The grandparents thereafter brought a contempt proceeding against the parents for allegedly failing to comply with the court's visitation order. After a hearing, the court refused to find the parents in contempt, but instead ordered temporary modification of visitation for the two younger children. The court decided the contempt issue would be further addressed during the next hearing in this matter. Since this appeal has been filed by the parents, the court has continued further contempt hearings.

[¶7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶8] The parents argue the district court erred in ordering grandparent visitation under N.D.C.C. § 14-09-05.1, which provides, in part:

The grandparents and great-grandparents of an unmarried minor child may be granted reasonable visitation rights to the child by the district court upon a finding that visitation would be in the best interests of the child and would not interfere with the parent-child relationship.

A

[¶9] The parents argue North Dakota's grandparent visitation statute, N.D.C.C. § 14-09-05.1, is an unconstitutional violation of parents' fundamental right to rear their children.

[¶10] Rule 44, N.D.R.App.P., provides:

If a party questions the constitutionality of a statute of the State of North Dakota in a proceeding in which the state or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the attorney general immediately upon the filing of the record or as soon as the question is raised.

[¶11] The parents did not notify the Attorney General about their constitutional challenge to N.D.C.C. § 14-09-05.1, and we caution that the Attorney General be given notice and an opportunity to be heard before considering the constitutionality of a statute. See Paluck v. Bd. of Cnty. Comm'rs, Stark Cnty., 307 N.W.2d 852, 854 n.2 (N.D. 1981) (" [W]hen a constitutional challenge is made to a statute directly involving the prerogatives of the legislative as well as the judicial branches of government and the taxing authority of the State, it would seem that the Attorney General should be notified so that he might appear on a matter which is significant to the operation of government in this State." ). Nevertheless, because we are construing N.D.C.C. § 14-09-05.1 to avoid a constitutional infirmity, the failure to give the Attorney General notice in these proceedings is not fatal.

[¶12] We held in Hoff v. Berg that a 1993 version of North Dakota's grandparent

Page 320

visitation law was unconstitutional, stating:

As amended in 1993, N.D.C.C. § 14-09-05.1 provides grandparents of an unmarried minor must be given visitation rights to the minor child unless the district court finds visitation is not in the best interests of the minor, and visitation rights of grandparents ...

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