In re Custody of NAK

• Decision Date: 15 August 2002
• Docket Number: No. C6-01-678., No. C3-01-170
• Citation: 649 N.W.2d 166
• Parties: In the Matter of the CUSTODY OF N.A.K., DOB 4/10/92. Christopher Rodgers, et al., Petitioners, Respondents, v. Robert J. Knauff, Petitioner, Appellant.
• Court: Minnesota Supreme Court

649 N.W.2d 166

In the Matter of the CUSTODY OF N.A.K., DOB 4/10/92.

Christopher Rodgers, et al., Petitioners, Respondents, v. Robert J. Knauff, Petitioner, Appellant.

Nos. C3-01-170, C6-01-678.

Supreme Court of Minnesota.

August 15, 2002.

Mark A. Olson, Burnsville, for Appellant.

Gary A. Debele, Walling & Berg, P.A., Minneapolis, for Respondents.

John Remington Graham, Quebec, Canada, for Amicus Curiae R-KIDS of Minnesota.

Laurie Hanson, Legal Aid Society of Minneapolis, John M. Jerabek, Minneapolis, for Amicus Curiae Minnesota Kinship Caregivers Association.

Gail Chang Bohr, Children's Law Center of Minnesota, St. Paul, Lisa Pritchard Bayley, Minneapolis, for Amicus Curiae Children's Law Center.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, Chief Justice.

Appellant Robert Knauff appeals an order awarding custody of his daughter N.A.K. to his deceased ex-wife's sister and brother-in-law. He argues that the custody order was based on findings unsupported by the record, that the court misapplied the law, and that the order violated his constitutional right to the care, custody and control of his child. The court of appeals affirmed the custody order. We reverse and remand the matter to the district court for further proceedings consistent with this opinion.

N.A.K. was born to appellant Robert Knauff and the now-deceased Renee Montpetit on April 10, 1992. Upon their divorce in 1994, Knauff and Montpetit were awarded joint legal custody of N.A.K. and Montpetit was awarded sole physical custody. Knauff and Montpetit clashed over financial and access issues, and Montpetit obtained orders for protection against Knauff in Ramsey County. Between 1995 and 1999 Knauff lived in Wisconsin, Ohio, and California, and in 1996 the district court ordered that Knauff's access with N.A.K. be supervised. However, Knauff testified that he never knew of this order and that he cared for N.A.K. at his mother's home during this time.

In late 1996, Montpetit was diagnosed with a serious heart ailment that resulted in hospitalizations and ultimately a heart transplant. During that time Montpetit's family, including her sister Robin Rodgers and Robin's husband Chris Rodgers (the Rodgers), stepped in to help care for Montpetit, N.A.K., and Montpetit's teenage son from another relationship, Nathan. In March 1998 Montpetit was admitted to a hospital in Rochester, and Montpetit and the Rodgers decided that N.A.K. would live with the Rodgers while Montpetit was in the hospital awaiting a heart transplant.

In June 1998 Montpetit executed a will that stated her wishes as to N.A.K.:

With regard to my minor child [N.A.K.], it is my sincere and firm belief that the natural father Robert J. Knauff is not a fit and proper person to have legal or physical custody. Under no conditions do I want Robert J. Knauff to be the testamentary guardian or conservator of the person or estate of my minor child [N.A.K.], nor do I want Robert J. Knauff to be the custodian, under the Uniform Transfers to Minors Act, of my minor child [N.A.K.]. I am stating my wishes in this regard out of love and concern for [N.A.K.]'s safety and welfare, and in consideration of her best interests, and therefore nominate as testamentary guardian and conservator of the person and estate of [N.A.K.] in the order of priority listed below:

* * * My sister Robin M. Rodgers.

* * * My sister JoyLynn Graf.

In July 1998 Montpetit moved back to the Twin Cities and N.A.K. and her older son Nathan moved back in with her while Montpetit waited to have a heart transplant, which occurred in November 1998. After the transplant, Montpetit remained hospitalized and later became an outpatient in Rochester until the end of February 1999. N.A.K. stayed with the Rodgers during this time; on the weekends members of Montpetit's family would bring N.A.K. to see Montpetit in Rochester.

During March of 1999 Montpetit's family began to notice that Montpetit's moods were volatile. After witnessing Montpetit's erratic behavior, Robin Rodgers contacted the Mayo Clinic. Montpetit received psychiatric treatment at the Mayo Clinic in April 1999 and a psychiatrist diagnosed her with "[p]robable drug induced mania versus bipolar affective disorder." The Mayo Clinic records also contain a letter from Montpetit's cardiologist that states Montpetit had shown evidence of hypomanic behavior at a clinic appointment. On May 12, 1999, the Mayo Clinic sent mental health evaluators to visit Montpetit at her home. Montpetit was very upset by this and blamed her family members, believing that they were trying to have her committed and gain custody of N.A.K. Montpetit took N.A.K. from the Rodgers' home in May 1999 and had N.A.K. live with her.

On June 4, 1999, Montpetit executed another will, which was probated in Ramsey County District Court after Montpetit's death.¹ The second will stated:

With regard to my minor child [N.A.K.], if the natural father Robert J. Knauff predeceases me, or otherwise is unable or fails to act as guardian, I nominate [my son Nathan's father] as the legal guardian of the person and estate of my minor child [N.A.K.].

In late June 1999, Montpetit took N.A.K. to California for a three-week visit, during which they stayed with Knauff. They returned to Minnesota after two weeks—one week earlier than planned.

Almost immediately thereafter Montpetit became ill, fell into a coma, and died on July 15, 1999. Knauff did not attend the funeral or make contact with N.A.K. at this time. Knauff testified that he was unaware of Montpetit's death and did not know N.A.K.'s whereabouts.² Because of the alleged difficulty in ascertaining N.A.K.'s whereabouts, he hired a private investigator to assist him in finding her. On July 24, 1999, Knauff and the private detective flew to Minnesota to pick N.A.K. up. Accompanied by police they arrived at the Rodgers' home at approximately 2:00 a.m. After the Rodgers showed the police a copy of the 1996 supervised visitation order, the police decided to leave N.A.K. in the custody of the Rodgers.

The next day the Rodgers executed nearly 30 pages of affidavits alleging among other things that Knauff had bi-polar affective disorder, had a drug and alcohol problem, had not held a steady job, and had not visited with N.A.K. after the 1996 order except for the California visit before Montpetit's death.

On July 26, the Rodgers filed a petition for custody of N.A.K., alleging that Knauff had willfully neglected to provide for N.A.K. and that N.A.K. had resided with the Rodgers for the majority of the previous three years. The Rodgers also filed a motion for an ex parte order granting them immediate temporary custody of N.A.K. The court issued the ex parte order, stating that the Rodgers had demonstrated that N.A.K. "has resided with them for a period of twelve months or more," and that Knauff "has had no contact with the child on a regular basis and has not demonstrated consistent participation in the child's well-being for more than six months" and "has refused or neglected to comply with the duties imposed upon him by the parent and child relationship" and the divorce decree.

Following the issuance of the ex parte order, the district court held a temporary custody hearing and on October 4, 1999, the district court granted the Rodgers temporary sole legal and sole physical custody of N.A.K., but allowed for access between Knauff and N.A.K. Because the court did not believe the case presented a "close call," it rejected Knauff's argument that a presumption favoring parents creates an "uneven playing field" favoring parents over third parties in close cases.

In preparation for the permanent custody hearing, the court then appointed a guardian ad litem for N.A.K. and directed the parties to cooperate with the Hennepin County Department of Court Services in completing a custody evaluation. Several evaluations were conducted by various professionals and the following reports were submitted to the court: a custody and visitation evaluation report prepared by Family Court Evaluator Nancy Darcy; a chemical dependency evaluation of Knauff prepared by Steven T. Johnson; and psychological evaluations of Christopher Rodgers, Robin Rodgers, and Robert Knauff, prepared by Paul H. Boerger, Ph.D. In addition, Nancy Darcy referred N.A.K. to Hennepin County psychologist Susan De Vries for an evaluation to obtain information on N.A.K.'s emotional health, her adjustment to her mother's death, and her attachment to Knauff and the Rodgers. De Vries recommended that N.A.K. begin individual therapy. Based upon that recommendation, the Rodgers selected Leslie Faricy as N.A.K.'s therapist. In turn, while N.A.K. was visiting Knauff in California in April 2000, Knauff brought N.A.K. to a therapist, Robin Walker, who issued a letter indicating that N.A.K. wished to live with her father. This letter from Walker, as well as Dr. Faricy's report and deposition testimony, were received by the court.

The custody trial began on August 1, 2000. The Rodgers, the guardian ad litem, and several experts provided both testimonial and documentary evidence suggesting that Knauff inappropriately involved N.A.K. in the custody proceedings. Knauff testified that the Rodgers had repeatedly denied him access to N.A.K., that his phone contact with N.A.K. was interfered with, and that his role as N.A.K.'s father was not being incorporated into decisions made for and about N.A.K. Knauff also alleged that N.A.K.'s guardian ad litem carried a significant bias against him during this time and was aligned with the Rodgers' counsel in another matter. The guardian denied any bias and testified at trial that Knauff's behavior was the root of any differences between them.³

On August 21, 2000, the district court granted the Rodgers permanent sole legal and physical custody of N.A.K. In doing so, the court made specific findings that corresponded with the factors a court is to consider in...