(Stearns County, MN, 2014) Shocking family court order: Supported by testimony from GAL, Family Court awards joint custody and primary residence of a child to a convicted child molester. GAL cites concerns that the mother is “protective” and orders orders her to have a “psychological evaluation” because the child has been tardy to school on several occasions….

As reported on the blog “Family In Law” by Michael Boulette on Jan 31, 2014 (I edited the names for privacy reasons)http://family-in-law.com/case-law-round-12713-understanding-endangerment/:

“One unpublished case out of the Court of Appeals this week.

In re the Marriage of H vs. H, A12-2127, (January 27, 2014) leaves the impression that Appellant (Mother) took for granted that the court would never award custody to Respondent (Father) because of his criminal history. (Father was a registered sex-offender for an offense he committed as a 13 year old.) It appears she was wrong.

After awarding Mother sole legal and physical custody in the parties’ 2009 divorce, the Court later granted Father temporary sole custody of their child in 2011. The district court restored custody to Mother a few months later, only to permanently modify custody in 2012 by granting the parties joint legal and joint physical custody and establishing Father’s home as the primary residence.

Perhaps the most interesting thing about H is the basis upon which the Court found “endangerment” sufficient to modify custody under Minn. Stat. 518.18: missing school.In affirming the district court’s custody modification, the Court of Appeals found support in the case law for the concept of endangerment-as-educational-neglect.

Apparently, the child’s difficulties in school, coupled with Mother’s interference with Father’s parenting time were enough to tip the scales towards endangerment and sustain the district court’s ruling.” http://family-in-law.com/case-law-round-12713-understanding-endangerment/

Background: Mr. H and Ms. B married in June 2006 in Stearns County, Minnesota. A daughter was born in the fall of that same year. A separation occurred in 2007 with formal divorce proceedings initiated in 2009. After the divorce, the mother, Ms. B was granted sole physical and sole legal custody of the child. Mr. H was ordered into supervised visits. Mr. H did not exercise parenting time during the time he was jailed for failing to register as a sex offender — this would have been the second offense for the same reason.

The Father, Mr. H, has a lengthy criminal record dating from 2003- with the most recent case being in 2012. Charges range from passing bad checks, theft to various traffic offenses. And two separate charges of intentionally providing false information under the Minnesota predatory offender registration rules (failing to register as a sex offender). There are conflicting reports about the age of the victim involved in the sexual offense. Mr. H was 13 at the time, the GAL reported the victim as age 11 while the police report states that an officer learned from the BCA the age of the victim as age 4. What is know is that Mr. H was found guilty, and was convicted of molesting a child.

In 2010, Mr. H petitioned the Court for more parenting time and an un-named GAL was appointed. The GAL criticized the mother Ms. B for being “protective and somewhat possessive” and felt it was in the best interest of the child to further parenting time, unsupervised, with Mr. H. Ms. B alleged that sexual abuse had occurred and on two occasions, failed to bring her daughter to visits. Ms. B also claimed that Mr. H brought her daughter to bars. A police investigation was conducted and found no evidence of sexual abuse.

As parenting time advanced, Ms. B continued to express concerns and in May 2011, denied Mr. H parenting time on other occasions. In June 2011, the Court gave Mr. H temporary sole physical and sole legal custody because Ms. B would not bring her child to visits.Keep in mind, at that time – Mr. H is still on probation and is a registered a sex offender. The Court felt it was in the best interest of the child to be reunited with her father, a convicted sex offender with a lengthy criminal record — and that the mother posed more of harm to the child by refusing to take her child to now unsupervised visits.

Reading the history of this case from the Appellate findings, it appears the Court moved rather quickly to push reunification with the father. Also, upon being released from jail, the father begins a new relationship with a woman who has a minor child living with them for part of the week. Which should be concerning — the guy just got out of jail for an offense related to child molestation, he is supposed to be establishing a better relationship with his own child and now is moving in a woman with her own young child. How much time and energy is Mr. H really putting into improving his own life? And how much can he provide his child when he is moving another family into his home–and his own relationship with his own daughter has not been established. And given his history, does Mr. H really need a minor child in his care? Not to mention the guy was in supervised visits for a reason and is now moving a woman and a new child into his home.. The Appellate findings do not answer these questions but they would have to be addressed by the GAL at some time, and clearly she was not concerned with any aspect of Mr. H’s parenting or home environment.

Around this time, the mother Ms. B suffered a mild concussion and while recovering, claimed she had trouble getting her child to school. Ms. B also said that some of the absences were excused because the child had medical issues and required frequent doctor visits. The record shows at least 3.5 absences and one tardy per semester. Ms. B. subsequently signed an Attendance Contract with the school. The school did not take any other formal action against Ms. B and did not notify social services.

The father Mr. H also suffered a back injury at some point, and missed at least one visit with his child because of it. Yet it appears the GAL dismissed his ability to parent based on a physical injury and instead focused on Ms. B’s physical injury as an indicator that she was not able to provide for her daughter.

It appears that the GAL pushed for Ms. B to get a psych eval, which the Court did order. The record offered does not show if Mr. H. was also ordered to undergo a psych eval. Ms. B psych eval showed that she has adjustment disorder with anxiety and depression, concerns with economics and concerns with the safety of her daughter and occupational problems.

When the child continued to be absent or tardy from school, the GAL cited “educational neglect” to recommend physical custody to Mr. H. It is unclear if other interventions or measures had been tried before removal was recommended by the GAL. Mr. H was living in a home with a girlfriend and her daughter. The GAL cited evidence that the daughter of the girlfriend was rarely late for school so the home would provide a better environment for the child. Which is somewhat strange because Mr. H never married the girlfriend, and is not the biological father of her child, so he is not considered a legal guardian. Further, the nature of their relationship as dating only, not marriage, does not indicate stability…the relationship could change at any time, and should not be used as a basis to determine custody. The Court then granted joint custody to both parties with primary physical going to Mr. H.

The appeal filed for this case was problematic in that the transcript from district court was not submitted, thus limiting the ability of the judges to make a decision on the Court’s conclusion of law. Also, Ms. B’s claims about contradictory statements made by the GAL could not be verified without an actual court transcript. Ms. B also did not submit the findings of her psych eval to the appellate court. When reading the findings, it seems clear the Appellate Court largely interpreted the psych eval based on what was in the GAL report. So presenting the psych eval would have been crucial. Also important, would be an updated medical report to note any change in condition or improvements. The Appeals Court upheld the findings of the district court.

Mr. H was discharged from probation in March 2014.

I am having trouble finding the best interest of the child in this ruling – The mother, Ms. B divorces her husband, specifically stating safety concerns for her child. At the time, Mr. H is put in jail and removed from society because he is a danger. Mr. H gets out of jail to be awarded increased unsupervised parenting time — while he is still on parole, and still be monitored because of concerns with his ability to be safe with children! And then the Court awards Mr. H joint custody and primary residence even while he is dating another woman, and moved a child into the home. That means the Court is awarding the non-relative woman who is staying in a relationship with the convicted child molester while punishing the blood relative mother who chose to divorce, and clearly expressed concerns for her child’s safety and left the relationship for safety rasons. Now we have two children in the home with a convicted child molester. And somehow missing a few days of school is supposed to be a bigger concern?!? The child molester father is given more resources and support to help gain custody of his daughter than help given to the protective mother, who has raised the child continuously since birth. And now the Court wants to introduce a live-in girlfriend and her daughter into this young child’s life? And this is really supposed to be in the best interest of the child? This ruling is problematic on so many levels — and yet it is so similar to so many stories many of us have experienced due to systematic failures in family court, and failures of the GAL program.

— EJ Perth

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