Amanda E. Kulbacki, Plaintiff and Appellant
Nicholas W. Michael, Defendant and Shawn Coulter, Interested Party and Appellee
from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable John A. Thelen,
Judge.REVERSED AND REMANDED.
R. Winning, Grand Forks, ND, for plaintiff and appellant.
Coulter, self-represented, Grand Forks, ND interested party
Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Jerod
E. Tufte, Gerald W.VandeWalle, C.J.
1] Amanda Kulbacki appeals from a district court order
denying her motion to terminate Shawn Coulter's
grandparent visitation with Kulbacki's minor child and
amend the child's birth certificate. We reverse,
concluding as a matter of law, the termination of Nicholas
Michael's parental rights was a material change in
circumstances and Coulter is not able to establish a basis to
have visitation under the facts of this case. We remand for
briefing on the district court's jurisdiction to order
the department of vital statistics to amend the child's
birth certificate upon termination of parental rights.
2] Kulbacki and Michael divorced in 2012 and have one child
together. Kulbacki was pregnant when the parties divorced,
and Michael was incarcerated when the child was born.
Kulbacki and the child live in Arizona. After the child's
birth, Michael and his mother, Coulter, requested grandparent
visitation under N.D.C.C. § 14-09-05.1. Kulbacki
subsequently began an action to terminate Michael's
parental rights in the superior court for Maricopa County,
3] The district court awarded Coulter one-half hour of
unsupervised visitation for each day Kulbacki visits Grand
Forks. The court concluded Kulbacki failed to establish
limited grandparent time would interfere with her
relationship with the child and would be contrary to the
child's best interests. Kulbacki appealed the decision,
and this Court held the "district court improperly
placed the burden on Kulbacki to show grandparent visitation
was not in the child's best interests." Kulbacki
v. Michael, 2014 ND 83, ¶ 10, 845 N.W.2d 625');">845 N.W.2d 625. We
remanded to the district court to address whether Coulter
could show visitation was in the child's best interests
and would not interfere with the parent-child relationship.
4] On remand, the district court found "Kulbacki has
repeatedly frustrated any attempt by Ms. Coulter to have any
contact whatsoever with her granddaughter." The court
did not make further findings under N.D.C.C. §
14-09-05.1(2) relating to the amount of personal contact
between Coulter and the child, but concluded Coulter met her
burden of showing it was in the child's best interests
for Coulter to have visitation with the child. The court
issued a second amended judgment awarding Coulter thirty
minutes of visitation each day Kulbacki visits Grand Forks.
Kulbacki did not appeal the judgment.
5] After entry of the second amended judgment, the superior
court in Arizona terminated Michael's parental rights.
Kulbacki moved to modify the judgment, seeking to terminate
Coulter's grandparent visitation.  Kulbacki argued
Coulter and the child have never met, they have no
relationship with each other, and Coulter is no longer the
child's legal grandparent. Kulbacki's motion also
requested that the child's birth certificate be amended
to remove Michael's name. The district court denied
Kulbacki's motion, finding no material change in
circumstances had occurred since the entry of the second
amended judgment establishing Coulter's grandparent
visitation. The court also determined it did not have
jurisdiction to order the North Dakota Department of Vital
Statistics to amend the child's birth certificate.
6] Kulbacki argues the district court erred in finding a
material change in circumstances has not occurred since entry
of the second amended judgment. She argues the termination of
Michael's parental rights is a material change in
circumstances. She contends the court should have terminated
Coulter's grandparent visitation because she is no longer
the child's legal grandparent.
7] A grandparent's right of visitation to a minor child
is governed by N.D.C.C. § 14-09-05.1. Modification of
grandparent visitation is not addressed by N.D.C.C. §
14-09-05.1 and has not been addressed by this Court. Other
courts addressing the issue have analogized modification of
grandparent visitation with modification of parenting time.
See, e.g., Lovlace v. Copley, 418 S.W.3d 1,
23 (Tenn. 2013); Barrett v. Ayres, 972 A.2d 905, 915
(Md. Ct. Spec. App. 2009). A modification of parenting time
requires a material change in circumstances that has occurred
since the prior order, and modification of the order is
necessary to serve the child's best interests.
Bredeson v. Mackey, 2014 ND 25, ¶ 6, 842 N.W.2d
860. Under the facts of this case, we need only ...