Minn. Stat. § 518.175

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Larson v. Dunn · 1990 4 citations

III. The crucial issue for this court is whether to create a tort of "intentional interference with custodial rights." The trend in the past years has been toward recognizing this tort. Approximately one third of the state appellate courts have ruled on this issue.[3] Despite what other *45 jurisdictions have decided, this court must base its decision on what is the best public policy for the State of Minnesota. Having witnessed a steady increase in family law litigation over the past 25 years, our courts and the legislature have learned that we must carefully consider, in disputes over children, not only the rights of parents but more importantly, the welfare and best interests of their children. Berndt v. Berndt, 292 N.W.2d 1 (Minn.1980); LaBelle v. LaBelle, 296 Minn. 173, 207 N.W.2d 291 (1973); State v. Waslie, 277 Minn. 446, 152 N.W.2d 755 (1967); Minn. Stat. § 257.025 (1988). See Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 Mich.L. Rev. 477, 481 n. 7 (1984). In deciding whether to create this tort (which is derivative of custodial rights), we must take the interests of the children involved as an important policy consideration. Cf. Wood v. Wood, 338 N.W.2d at 128 (Wolle, J. dissenting). This new tort would create a new burden on children who are already dislocated by the dissolution of their parents' marriage. Abducted children are almost always young. The abductors are often the noncustodial parent (as in this case, the mother, in many cases, the father) assisted by immediate family or relatives. Children of divorce generally love their parents and want a loving and helpful relationship with both parents once the marriage is dissolved. With this tort, a child may be forced to testify against his or her own mother or father. In this case, the father submitted an affidavit from Jessica relating to the actions of her mother and grandparents. One can only imagine the torment of a young child forced to testify in writing or verbally against a parent he or she loves. Jessica had lived with her mother for over 8 years before she was returned to her father. Evidence is piling up that children can be devastated by divorce, and their continuing development can be detrimentally affected by subsequent events. See, e.g., Chambers, 83 Mich.L.Rev. at 507 (noting that divorce is a time of anxiety and dislocation); Schepard, Taking Children Seriously: Promoting Cooperative Custody after Divorce, 64 Tex.L.Rev. 687, 703-04 (1985) (divorce causes "significant and threatening instability in a child's life" causing emotional damage). For the good of our children, the law should seek to promote such harmony as is possible in families fractured by the dissolution *46 process. At a minimum, the law should not provide a means of escalating intrafamily warfare. This action puts members of Jessica's family — her mother, grandparents, her uncle at odds with her father, and places her in the middle. It is clear that this tort would be used as a new weapon in such disputes. Already this litigation has precipitated bitter accusations and contradictory affidavits. The interest in compensation should not outweigh the effects of bitter accusations on young children. This court, in denying a cause of action for alienation of a child's affection after our legislature had abolished this action, reasoned that [t]he circumstances under which the right has here been asserted demonstrate the potential for grave abuses, in which a child becomes the object of intrafamily controversy and, indeed, a pawn in disputes over monetary matters. In the more usual case of marriage dissolution resulting in deteriorated relationships, a cause of action by one parent against another for alienation of a child's affections would exacerbate the unhappy relationships and become a strategic tool for advantageous use of one family member over another. Bock v. Lindquist, 278 N.W.2d 326, 327-28 (Minn.1979). Creating this new tort would create a new wrong. It would place innocent children in the middle of a vigorous, probably vicious, lawsuit between their parents. It would duplicate the ambivalence and dislocation of the dissolution itself. In this case the grandparents would defend themselves on the grounds that they reasonably believed their grandchild was abused and this would in effect cause relitigation of the original critical custody decision made in 1980. The law in Minnesota already provides redress for a custodial parent in such a situation. Minn. Stat. § 611A.04. This provision does not allow jury trial. It may be that, in this sensitive area of family law, a judge's discretion is better than a jury trial, at which a child would almost certainly have to testify. In any event, this would prevent additional litigation, which would place a burden of stress on the abducted child. In addition, our parental kidnapping statute may provide for an award of costs incurred in recovering the child. Minn. Stat. § 609.26, subd. 4 (1988). Further, emotional distress could possibly be recovered in egregious cases through the independent tort of Intentional Infliction of Emotional Distress, which Minnesota recognizes. See Hubbard v. United Press International, 330 N.W.2d 428, 439-39 (Minn.1983) (recognizing IIED). Minnesota already recognizes the action for lost services of the child. See Eichten v. Central Minnesota Cooperative Power Ass'n, 224 Minn. 180, 194-95, 28 N.W.2d 862, 871 (1947). Although the conduct in this case is egregious, and done in defiance of a court order, the proper remedy for such violation of the court's integrity lies in contempt and other such sanctions; not in providing the other party with compensation. Cf. Bock v. Lindquist, 278 N.W.2d 326, 328 (Minn. 1979) (denying parent tort recovery for alienation of child's affection, in part because other remedies make actions for alienation unnecessary and undesirable, e.g., habeas corpus, or contempt of court). This case also clearly illustrates the other penalties abductors will pay. The mother in this case has not seen her daughter since she was apprehended over three years ago. This tort will not deter parental abduction. The mother and grandparents in this case apparently believed they were protecting the child. A growing number of parents are hiding their children to protect them from physical and sexual abuse. See Myers, Allegations of Child Sexual Abuse in Custody and Visitation Litigation: Recommendations for Improved Fact Finding and Child Protection, 28 J.Fam.L. 1, 2 (1989). Studies show that allegations of sexual abuse, while sometimes fabricated, are very often genuine. Id. at 21. Family ties are normally stronger than the fear of money damages. If a parent or grandparent believes a child is in danger, that parent or grandparent will probably not stop to consider tort liability *47 before acting to protect the child. It will not add to the dignity of the law if grand-parents are sued for providing shelter to their grandchildren in such situations. The scope of liability under this new tort may also result in a proliferation of litigation. Liability under the tort is contemplated not only for physically taking the child but for such conduct as "providing the means by which the child was carried off." Prosser & Keeton on the Law of Torts, § 124, text at note 32. Larson not only alleges certain affirmative acts by the grandparents and uncle but also alleges their failure to give correct information about Jessica's whereabouts, thereby delaying her discovery and aggravating his emotional and financial harm. Once we adopt the rule contemplated by the Restatement, it soon will become an integral part of Minnesota family law. Such a tort could be used as a weapon for revenge and continued hostility as is clearly apparent in this case. The Minnesota Legislature has dealt intelligently with this problem. Child abduction by the noncustodial parent is a serious crime.[4] The state has also adopted the Uniform Child Custody Jurisdiction Act (UCCJA) which provides a means for enforcing custody decrees across state lines. In addition our courts have broad discretion to protect custodial and visitation rights. Minn. Stat. § 518.175, subd. 3 (custodial parent may not move child out of state if intent is to interfere with visitation rights) and subd. 4 (contempt of court for unwarranted denial or interference with visitation rights) (1988) id. at 518.176 (judicial supervision of custody and visitation rights). See Tischendorf v. Tischendorf, 321 N.W.2d 405, 412 (Minn.1982) (approving requirement that noncustodial parent post bond and provide transportation for adult companion to secure return of child to custodial parent after foreign visits), cert. denied, 460 U.S. 1037, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983). It has been advocated by some that this tort will "fill in the gaps." Before taking such a step, which may profoundly and permanently affect the relationships between children, their parents, grandparents, aunts and uncles, a broader segment of our society should study, debate and consider this action, and if such a tort is to be adopted, decide how broad its scope and how far reaching its award of damages will be. Expanding the adversarial process to include this new tort is contrary to the best interests of children and will only intensify intrafamily conflict growing out of marriage dissolution without deterring parental abduction. Affirmed in part, reversed in part. POPOVICH, Chief Justice (dissenting). I concur with the majority on the issue of personal jurisdiction. I respectfully dissent on the issue of an action for interference with custodial rights and would affirm the court of appeals. The majority's emphasis on limited aspects of the case ignores those facets involving elemental fairness and honoring a custodial order.

III. The crucial issue for this court is whether to create a tort of "intentional interference with custodial rights." The trend in the past years has been toward recognizing this tort. Approximately one third of the state appellate courts have ruled on this issue.[3] Despite what other *45 jurisdictions have decided, this court must base its decision on what is the best public policy for the State of Minnesota. Having witnessed a steady increase in family law litigation over the past 25 years, our courts and the legislature have learned that we must carefully consider, in disputes over children, not only the rights of parents but more importantly, the welfare and best interests of their children. Berndt v. Berndt, 292 N.W.2d 1 (Minn.1980); LaBelle v. LaBelle, 296 Minn. 173, 207 N.W.2d 291 (1973); State v. Waslie, 277 Minn. 446, 152 N.W.2d 755 (1967); Minn. Stat. § 257.025 (1988). See Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 Mich.L. Rev. 477, 481 n. 7 (1984). In deciding whether to create this tort (which is derivative of custodial rights), we must take the interests of the children involved as an important policy consideration. Cf. Wood v. Wood, 338 N.W.2d at 128 (Wolle, J. dissenting). This new tort would create a new burden on children who are already dislocated by the dissolution of their parents' marriage. Abducted children are almost always young. The abductors are often the noncustodial parent (as in this case, the mother, in many cases, the father) assisted by immediate family or relatives. Children of divorce generally love their parents and want a loving and helpful relationship with both parents once the marriage is dissolved. With this tort, a child may be forced to testify against his or her own mother or father. In this case, the father submitted an affidavit from Jessica relating to the actions of her mother and grandparents. One can only imagine the torment of a young child forced to testify in writing or verbally against a parent he or she loves. Jessica had lived with her mother for over 8 years before she was returned to her father. Evidence is piling up that children can be devastated by divorce, and their continuing development can be detrimentally affected by subsequent events. See, e.g., Chambers, 83 Mich.L.Rev. at 507 (noting that divorce is a time of anxiety and dislocation); Schepard, Taking Children Seriously: Promoting Cooperative Custody after Divorce, 64 Tex.L.Rev. 687, 703-04 (1985) (divorce causes "significant and threatening instability in a child's life" causing emotional damage). For the good of our children, the law should seek to promote such harmony as is possible in families fractured by the dissolution *46 process. At a minimum, the law should not provide a means of escalating intrafamily warfare. This action puts members of Jessica's family — her mother, grandparents, her uncle at odds with her father, and places her in the middle. It is clear that this tort would be used as a new weapon in such disputes. Already this litigation has precipitated bitter accusations and contradictory affidavits. The interest in compensation should not outweigh the effects of bitter accusations on young children. This court, in denying a cause of action for alienation of a child's affection after our legislature had abolished this action, reasoned that [t]he circumstances under which the right has here been asserted demonstrate the potential for grave abuses, in which a child becomes the object of intrafamily controversy and, indeed, a pawn in disputes over monetary matters. In the more usual case of marriage dissolution resulting in deteriorated relationships, a cause of action by one parent against another for alienation of a child's affections would exacerbate the unhappy relationships and become a strategic tool for advantageous use of one family member over another. Bock v. Lindquist, 278 N.W.2d 326, 327-28 (Minn.1979). Creating this new tort would create a new wrong. It would place innocent children in the middle of a vigorous, probably vicious, lawsuit between their parents. It would duplicate the ambivalence and dislocation of the dissolution itself. In this case the grandparents would defend themselves on the grounds that they reasonably believed their grandchild was abused and this would in effect cause relitigation of the original critical custody decision made in 1980. The law in Minnesota already provides redress for a custodial parent in such a situation. Minn. Stat. § 611A.04. This provision does not allow jury trial. It may be that, in this sensitive area of family law, a judge's discretion is better than a jury trial, at which a child would almost certainly have to testify. In any event, this would prevent additional litigation, which would place a burden of stress on the abducted child. In addition, our parental kidnapping statute may provide for an award of costs incurred in recovering the child. Minn. Stat. § 609.26, subd. 4 (1988). Further, emotional distress could possibly be recovered in egregious cases through the independent tort of Intentional Infliction of Emotional Distress, which Minnesota recognizes. See Hubbard v. United Press International, 330 N.W.2d 428, 439-39 (Minn.1983) (recognizing IIED). Minnesota already recognizes the action for lost services of the child. See Eichten v. Central Minnesota Cooperative Power Ass'n, 224 Minn. 180, 194-95, 28 N.W.2d 862, 871 (1947). Although the conduct in this case is egregious, and done in defiance of a court order, the proper remedy for such violation of the court's integrity lies in contempt and other such sanctions; not in providing the other party with compensation. Cf. Bock v. Lindquist, 278 N.W.2d 326, 328 (Minn. 1979) (denying parent tort recovery for alienation of child's affection, in part because other remedies make actions for alienation unnecessary and undesirable, e.g., habeas corpus, or contempt of court). This case also clearly illustrates the other penalties abductors will pay. The mother in this case has not seen her daughter since she was apprehended over three years ago. This tort will not deter parental abduction. The mother and grandparents in this case apparently believed they were protecting the child. A growing number of parents are hiding their children to protect them from physical and sexual abuse. See Myers, Allegations of Child Sexual Abuse in Custody and Visitation Litigation: Recommendations for Improved Fact Finding and Child Protection, 28 J.Fam.L. 1, 2 (1989). Studies show that allegations of sexual abuse, while sometimes fabricated, are very often genuine. Id. at 21. Family ties are normally stronger than the fear of money damages. If a parent or grandparent believes a child is in danger, that parent or grandparent will probably not stop to consider tort liability *47 before acting to protect the child. It will not add to the dignity of the law if grand-parents are sued for providing shelter to their grandchildren in such situations. The scope of liability under this new tort may also result in a proliferation of litigation. Liability under the tort is contemplated not only for physically taking the child but for such conduct as "providing the means by which the child was carried off." Prosser & Keeton on the Law of Torts, § 124, text at note 32. Larson not only alleges certain affirmative acts by the grandparents and uncle but also alleges their failure to give correct information about Jessica's whereabouts, thereby delaying her discovery and aggravating his emotional and financial harm. Once we adopt the rule contemplated by the Restatement, it soon will become an integral part of Minnesota family law. Such a tort could be used as a weapon for revenge and continued hostility as is clearly apparent in this case. The Minnesota Legislature has dealt intelligently with this problem. Child abduction by the noncustodial parent is a serious crime.[4] The state has also adopted the Uniform Child Custody Jurisdiction Act (UCCJA) which provides a means for enforcing custody decrees across state lines. In addition our courts have broad discretion to protect custodial and visitation rights. Minn. Stat. § 518.175, subd. 3 (custodial parent may not move child out of state if intent is to interfere with visitation rights) and subd. 4 (contempt of court for unwarranted denial or interference with visitation rights) (1988) id. at 518.176 (judicial supervision of custody and visitation rights). See Tischendorf v. Tischendorf, 321 N.W.2d 405, 412 (Minn.1982) (approving requirement that noncustodial parent post bond and provide transportation for adult companion to secure return of child to custodial parent after foreign visits), cert. denied, 460 U.S. 1037, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983). It has been advocated by some that this tort will "fill in the gaps." Before taking such a step, which may profoundly and permanently affect the relationships between children, their parents, grandparents, aunts and uncles, a broader segment of our society should study, debate and consider this action, and if such a tort is to be adopted, decide how broad its scope and how far reaching its award of damages will be. Expanding the adversarial process to include this new tort is contrary to the best interests of children and will only intensify intrafamily conflict growing out of marriage dissolution without deterring parental abduction. Affirmed in part, reversed in part. POPOVICH, Chief Justice (dissenting). I concur with the majority on the issue of personal jurisdiction. I respectfully dissent on the issue of an action for interference with custodial rights and would affirm the court of appeals. The majority's emphasis on limited aspects of the case ignores those facets involving elemental fairness and honoring a custodial order.

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2 Usually, custody and parenting time involve separate analyses under separate statutes. See Minn. Stat. § 518.17 (describing the custody analysis); Minn. Stat. § 518.175 (Supp. 2015) (describing the parenting-time analysis). Appellant consolidated these issues into a single argument, focusing on the child-custody issue. Appellant has argued neither that his parenting time is being “restricted” nor that he was not granted the presumptively appropriate 25% parenting time. Minn. Stat. § 518.17, subd. 1(b), (g).

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Minn. Stat. § 518.175, subd. 1(g) (Supp. 2015).

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child’s primary residence.” Minn. Stat. § 518.175, subd. 5(a) (2014); see also Hagen v.

child’s primary residence.” Minn. Stat. § 518.175, subd. 5(a) (2014); see also Hagen v.

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unreasonably failed to comply with court-ordered parenting time.” Minn. Stat. § 518.175, subd. 5 (2012). But a reduction of parenting time is not necessarily a

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noncustodial parent. Minn. Stat. § 518.175, subd. 3(a) (2012). In determining whether to

noncustodial parent. Minn. Stat. § 518.175, subd. 3(a) (2012). In determining whether to

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Generally, an appeal or an issue in an appeal will be dismissed as moot if, pending an appeal, an event occurs which makes a decision on the merits unnecessary or if an award of effective relief impossible. In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn.1984). 3 Mootness “implies a comparison between the relief demanded and the circumstances of the case at the time of decision in order to determine whether there is a live controversy that can be resolved.” In re Application of Minnegasco, Inc., 565 N.W.2d 706, 710 (Minn.1997). The relief father seeks is an evi-dentiary hearing, which this court can grant despite the death of mother’s father. Also, father argues that the district court’s denial of his motion to modify custody failed to consider that the mother’s allowing the children to spend time with her father was only one example of her poor judgment. He further argues that mother interfered with his parenting time and that, under Minn. Stat. § 518.175, subd. 5 (2006), this interference entitles him to an evidentiary hearing. If such problems exist in the district court’s ruling, they would not be resolved by the death of mother’s father. Therefore, we conclude that the custody question is not moot, and we deny the motion to dismiss.

Generally, an appeal or an issue in an appeal will be dismissed as moot if, pending an appeal, an event occurs which makes a decision on the merits unnecessary or if an award of effective relief impossible. In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn.1984). 3 Mootness “implies a comparison between the relief demanded and the circumstances of the case at the time of decision in order to determine whether there is a live controversy that can be resolved.” In re Application of Minnegasco, Inc., 565 N.W.2d 706, 710 (Minn.1997). The relief father seeks is an evi-dentiary hearing, which this court can grant despite the death of mother’s father. Also, father argues that the district court’s denial of his motion to modify custody failed to consider that the mother’s allowing the children to spend time with her father was only one example of her poor judgment. He further argues that mother interfered with his parenting time and that, under Minn. Stat. § 518.175, subd. 5 (2006), this interference entitles him to an evidentiary hearing. If such problems exist in the district court’s ruling, they would not be resolved by the death of mother’s father. Therefore, we conclude that the custody question is not moot, and we deny the motion to dismiss.

Generally, an appeal or an issue in an appeal will be dismissed as moot if, pending an appeal, an event occurs which makes a decision on the merits unnecessary or if an award of effective relief impossible. In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn.1984). 3 Mootness “implies a comparison between the relief demanded and the circumstances of the case at the time of decision in order to determine whether there is a live controversy that can be resolved.” In re Application of Minnegasco, Inc., 565 N.W.2d 706, 710 (Minn.1997). The relief father seeks is an evi-dentiary hearing, which this court can grant despite the death of mother’s father. Also, father argues that the district court’s denial of his motion to modify custody failed to consider that the mother’s allowing the children to spend time with her father was only one example of her poor judgment. He further argues that mother interfered with his parenting time and that, under Minn. Stat. § 518.175, subd. 5 (2006), this interference entitles him to an evidentiary hearing. If such problems exist in the district court’s ruling, they would not be resolved by the death of mother’s father. Therefore, we conclude that the custody question is not moot, and we deny the motion to dismiss.

Beardsley v. Garcia · 2007 1 citation

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Neu v. Pollard · 2003 5 citations

+ 5 more citations in this opinion.

Rutz v. Rutz · 2002 8 citations

+ 8 more citations in this opinion.

Marriage of Matson v. Matson · 2002 3 citations

+ 3 more citations in this opinion.

Braith v. Fischer · 2001 1 citation

+ 1 more citation in this opinion.

Marriage of Lemcke v. Lemcke · 2001 1 citation

+ 1 more citation in this opinion.

Sharp v. Bilbro · 2000 4 citations

+ 4 more citations in this opinion.

Marriage of Rumney v. Rumney · 2000 1 citation

+ 1 more citation in this opinion.

Foster on Behalf of J.B. v. Brooks · 1996 2 citations

+ 2 more citations in this opinion.

In Re the Welfare of M.P. · 1996 1 citation

+ 1 more citation in this opinion.

Marriage of Courey v. Courey · 1994 10 citations

+ 10 more citations in this opinion.

Marriage of J.A.S. v. R.J.S. · 1994 1 citation

+ 1 more citation in this opinion.

Jas v. Rjs · 1994 1 citation

+ 1 more citation in this opinion.

Dabill v. Dabill · 1994 1 citation

+ 1 more citation in this opinion.

Marriage of Anderson v. Archer · 1993 4 citations

+ 4 more citations in this opinion.

In Re the Welfare of J.D.N. · 1993 2 citations

+ 2 more citations in this opinion.

State Ex Rel. Doucette v. Kraskey · 1993 1 citation

+ 1 more citation in this opinion.

Marriage of Ayers v. Ayers · 1993 2 citations

+ 2 more citations in this opinion.

Marriage of Al-Zouhayli v. Al-Zouhayli · 1992 5 citations

+ 5 more citations in this opinion.

Marriage of Lutzi v. Lutzi · 1992 7 citations

+ 7 more citations in this opinion.