In re Custody of N.S.V., 091619 MNCA, A18-0990

Docket Nº:A18-0990
Opinion Judge:HALBROOKS, JUDGE
Party Name:In Re the Custody of: N.S.V., L.J.V., E.T.V., Terri Ann Bischoff, Appellant, v. Linda J. Vetter, Respondent.
Attorney:John DeWalt, Melissa Chawla, DeWalt, Chawla + Saksena, LLC, Minneapolis, Minnesota (for appellant) Gary A. Debele, Messerli & Kramer P.A., Minneapolis, Minnesota (for respondent) Michael D. Dittberner, Linder, Dittbener, & Winter, Ltd., Edina, Minnesota; and Mary Pat Byrn, Viitala Law Office, Min...
Judge Panel:Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and Klaphake, Judge.
Case Date:September 16, 2019
Court:Court of Appeals of Minnesota
 
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In Re the Custody of: N.S.V., L.J.V., E.T.V., Terri Ann Bischoff, Appellant,

v.

Linda J. Vetter, Respondent.

No. A18-0990

Court of Appeals of Minnesota

September 16, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Hennepin County District Court File No. 27-FA-16-478

John DeWalt, Melissa Chawla, DeWalt, Chawla + Saksena, LLC, Minneapolis, Minnesota (for appellant)

Gary A. Debele, Messerli & Kramer P.A., Minneapolis, Minnesota (for respondent)

Michael D. Dittberner, Linder, Dittbener, & Winter, Ltd., Edina, Minnesota; and Mary Pat Byrn, Viitala Law Office, Minneapolis, Minnesota; and Diane B. Galatowitsch, Stinson, Leonard, Street, LLP, Minneapolis, Minnesota; and Elizabeth E. Due, Mack & Santana Law Offices, P.C., Minneapolis, Minnesota (for amicus curiae Minnesota Lavender Bar Association)

Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and Klaphake, Judge. [*]

HALBROOKS, JUDGE

Appellant challenges the denial of her petition to be adjudicated the parent of three minor children under the Minnesota Parentage Act, Minn. Stat. §§ 257.51-.74 (2018), arguing that the district court erred in determining that no presumption of parentage applies to her, that the parentage act is unconstitutional, and that the district court erred in denying her request to be granted third-party custody of the children. We affirm.

FACTS

Appellant Terri Ann Bischoff and respondent Linda J. Vetter were in a romantic relationship from approximately 2002 until 2010. Vetter became pregnant in October 2004, and gave birth to N.S.V. in June 2005. The parties lived in Madison, Wisconsin at the time and owned a bookstore where Bischoff worked. After Vetter returned to work following maternity leave, Bischoff brought N.S.V. with her to the bookstore during the day and cared for him there. This continued for approximately one year, at which time N.S.V. began attending daycare 2-3 times per week.

Shortly after N.S.V. was born, the parties decided that they wanted him to have a sibling. Vetter started the artificial-insemination process again and ultimately became pregnant with twin boys. The twins, L.J.V. and E.T.V., were born in September 2007. The parties sent out a birth announcement that listed Vetter and Bischoff as the "proud parents." All three children were baptized into the Moravian Church, which Bischoff grew up attending, and have godparents from both sides of the parties' families. Each child also has family names from both sides incorporated into his name.

In September 2008, the parties sold the bookstore and moved to Champlin, Minnesota. In 2010, the parties ended their relationship. Following the parties' separation, the children lived with Vetter. By agreement of the parties, Bischoff paid Vetter $500 a month for what the parties characterized as child support. The parties also established an informal parenting-time schedule in which Bischoff had the children for one overnight per week and every other weekend. There was no agreement regarding holidays or vacation.

The child-support payments and parenting-time schedule were in place from the time the parties ended their relationship in 2010 until the spring of 2015. During that time, Bischoff continued to be listed as a parent contact on the children's medical and school records. In the spring of 2015, Vetter removed Bischoff's name from the children's records after discovering that Bischoff had begun a relationship with A.S. Vetter believed that A.S. had a concerning history of violent behavior and requested that Bischoff keep her away from the children.

In December 2015, Bischoff commenced this action to establish custody and parenting time. Bischoff requested that the district court adjudicate her as the "intended and legal parent" of the children, order that the parties share joint legal and physical custody of the children, and establish a parenting-time schedule. Vetter filed an answer denying many of the factual allegations in Bischoff's petition and moved to dismiss the petition for failure to state a claim upon which relief can be granted. The district court denied the motion and ordered a custody and parenting-time evaluation.

Bischoff filed an amended petition to establish parentage, custody, and parenting time. The petition alleged that she qualified as a parent and had standing to pursue custody and parenting time under the parentage act because she had received the children into her home and held them out as her own. She asserted that if the district court determined that she did not have standing to bring a parentage action under the parentage act, then the act was unconstitutional. In the alternative, she argued...

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