Kulbacki v. Michael

         Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable John A. Thelen, Judge.REVERSED AND REMANDED.

          Kari R. Winning, Grand Forks, ND, for plaintiff and appellant.

          Shawn Coulter, self-represented, Grand Forks, ND interested party and appellee.

          Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Jerod E. Tufte, Gerald W.VandeWalle, C.J.

          Kapsner, Justice.

         [¶ 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.

         I

         [¶ 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, Arizona.

         [¶ 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. Id.

         [¶ 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. ^[1] 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.

         II

         [¶ 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 ...