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STATE OF MINNESOTA IN COURT OF APPEALS A10-1129 In re the Minor Child: C. D. G. D., born September 20, 2008 Roxanne Marie Givens, third party petitioner, Respondent, vs. Anthony Michael Darst, Appellant Filed June 20, 2011 Reversed and remanded Ross, Judge Hennepin County District Court File No. 27-FA-09-862 Alan C. Eidsness, Melissa J. Nilsson, Henson & Efron, P.A., Minneapolis, Minnesota (for respondent) John R. Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., Minneapolis, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Johnson, Chief Judge; and Ross, Judge. SYLLABUS 1. A district court abuses its discretion by treating a grandparent essentially as

a noncustodial parent when calculating the amount and arrangement of grandparent visitation under Minnesota Statutes section 257C.08, subdivision 1 (2010). 2. A grandparent visitation schedule ordered against a custodial parent's

wishes under Minnesota Statutes section 257C.08, subdivision 1, may be so substantial in

quantity and intrusive in structure that it necessarily exceeds the district court's discretionary authority limiting grandparent visitation to schedules that do not interfere with the parent-child relationship. 3. A district court abuses its discretion by ordering grandparent visitation

under Minnesota Statutes section 257C.08, subdivision 1, without giving presumptive deference to the parent's determination as to visitation or without receiving proof by clear and convincing evidence that the visitation will not interfere with the parent-child relationship. OPINION ROSS, Judge Anthony Darst, father, appeals from the district court's order granting substantial visitation rights to his son's maternal grandmother, Roxanne Givens, following the murder of the child's mother. The district court granted Givens visitation every Tuesday and Thursday afternoon and every other weekend extended from Friday evening through Sunday evening. The district court's visitation order treats the grandmother essentially as a noncustodial parent and imposes a schedule that on its face interferes with the father's parent-child relationship. And the district court failed to apply the constitutionally required burden and standard of proof. The district court therefore abused its discretion and we reverse. FACTS Roxanne Givens's daughter was unmarried and living with Givens at home when she gave birth to C.D.G.D. in September 2008. Although C.D.G.D.'s birth certificate did 2

not designate a father, his mother recognized Anthony Darst as the boy's father and gave him Darst's surname. Genetic testing completed in October confirmed Darst as the father, and in a signed and notarized agreement the mother expressly attempted to acknowledge Darst as having all legal rights as the father. She also agreed in that document that Darst would have liberal parenting time with C.D.G.D., specifically stating that Darst could see C.D.G.D. every day, could have him overnight at least two nights weekly, and could take [C.D.G.D.] on all of his days off from work. She and C.D.G.D. continued to live with Givens for approximately the first four months of C.D.G.D.'s life, until a man she had previously dated murdered her in January 2009. Less than two weeks after her daughter's murder, on February 6 Givens petitioned the district court ex parte to become C.D.G.D.'s sole legal and sole physical custodian. Her petition, filed without notice to Darst, stated only that Darst may be C.D.G.D.'s father. The district court immediately ordered that Givens be designated as C.D.G.D.'s temporary legal and physical custodian. Darst learned of the order, and within one week he served Givens with his petition for judgment of paternity so that he could secure his paternal right to sole legal and physical custody. Three weeks later he filed the petition with the district court.1 The district court consolidated the two competing custody petitions in a single case but it took some time before ruling. It did not adjudicate Darst as father until May

1

We refer only to the district court throughout this opinion. The decisions in this case were made by a judicial referee and then adopted by district court judges, and for convenience only we make no distinction. See Minn. Stat.

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