McAllister v. McAllister, 20090176.

Decision Date16 March 2010
Docket NumberNo. 20090176.,20090176.
Citation779 NW 2d 652,2010 ND 40
PartiesMark Alexander McALLISTER, Plaintiff, Appellee and Cross-Appellant v. Robin Marie McALLISTER, Defendant, Appellant and Cross-Appellee and Michael J. Tharaldson, Defendant.
CourtNorth Dakota Supreme Court

Melinda Hanson Weerts, Fargo, ND, for plaintiff, appellee and cross-appellant.

L. Patrick O'Day, Fargo, ND, for defendant, appellant and cross-appellee.

VANDE WALLE, Chief Justice.

¶ 1 Robin McAllister appealed, and Mark McAllister cross-appealed, from the district court's judgment in this divorce. The district court granted decisionmaking responsibility and primary residential responsibility for E.M., who is Robin McAllister's biological child and Mark McAllister's stepchild, to Robin McAllister.1 The district court also found Mark McAllister is E.M.'s psychological parent and granted him reasonable visitation. The district court further ordered Robin McAllister to invite Mark McAllister to school events and provide him with progress reports. Finally, the district court found Mark McAllister "is entitled to all legal rights set forth in § 14-09-28 of the North Dakota Century Code." We affirm the district court's judgment that exceptional circumstances exist justifying reasonable visitation for Mark McAllister. The district court's finding that Mark McAllister has the rights listed in N.D.C.C. § 14-09-28 is not clearly erroneous because the rights relate to communication and visitation.


¶ 2 Robin McAllister conceived a child, E.M., with Michael Tharaldson. While she was pregnant, Robin McAllister moved out of Tharaldson's home. She met Mark McAllister and moved in with him. After E.M. was born in 2002, Robin McAllister and Mark McAllister raised him together. Robin McAllister and Mark McAllister married in 2004 and had two children. In 2008, Robin McAllister left Mark McAllister. She took E.M. with her, while leaving the two younger children with Mark McAllister. Robin McAllister and E.M. moved in with Jason Prosje, with whom Robin McAllister previously had a relationship. Mark McAllister filed for divorce in March 2008, naming Robin McAllister and Tharaldson as defendants. Robin McAllister and Mark McAllister resolved all the issues of the divorce, except custody of E.M., by stipulation.

¶ 3 After Robin McAllister left Mark McAllister, she informed E.M. that Tharaldson, not Mark McAllister, was his biological father. Tharaldson's paternity of E.M. was established by the district court in 2003, and his parental rights have not been terminated. Tharaldson was ordered to pay three thousand dollars per month in child support. The district court also established a graduated schedule of parenting time for Tharaldson. Robin McAllister testified Tharaldson has remained current on his child support payments and exercised parenting time with E.M. until E.M. was age two, then again after the McAllisters separated.

¶ 4 Mark McAllister retains primary residential responsibility of the two younger children, with scheduled parenting time for Robin McAllister. Regarding his relationship with E.M., he testified, "I have been there since E.M. was born. I took Robin McAllister to doctor's visits. I love E.M. E.M. is the same as my other two children." E.M. always has, and continues to, refer to Mark McAllister as "Dad" or "Daddy." Mark McAllister requested decisionmaking responsibility and primary residential responsibility of E.M.:

I want custody of E.M. because I love him. Because he is my oldest kid and he has always been my oldest kid. I worry about his well-being and I worry about him being taken care of. And I worry about him growing up to be a good functioning member of society and being happy. I don't think Robin can do that. I think that she can clothe him and feed him, but I don't think that psychologically she can help him when he needs help.

¶ 5 Robin McAllister testified she believed Mark McAllister was away for work and left her alone with the children too much during the marriage. When she left Mark McAllister, she took E.M. with her "because he is not Mark's biological child." She believed leaving her two other children with Mark McAllister "would be best for them." In her opinion, it would be best for E.M. "to stay with his mother, and... limit the visitation a little bit with Mark so that he has time to adjust to things going on in his life like Mike Tharaldson wanting visitation, like the new home life with Jason Prosje and Prosje's daughter and mommy being happier."

¶ 6 The custody investigator testified she believed Robin McAllister had a "strong bond" with E.M., but questioned her "ability to consistently provide a strong, nurturing relationship to her son." The custody investigator's concern was based on Robin McAllister's history of depression and the consistency of her treatment for her mental health needs. She had no concern about Mark McAllister's ability to consistently maintain a strong bond with E.M. The custody investigator also testified Robin McAllister is "very capable of being a good mother." She testified it is important for E.M. to "maintain regular contact" with both Robin McAllister and Mark McAllister "because that's his family, it's important to him." According to the custody investigator, E.M. considers Mark McAllister to be his father. She testified Mark McAllister is E.M.'s psychological parent. However, she did not believe E.M. would suffer any detriment or harm if primary residential responsibility was granted to Robin McAllister. The custody investigator recommended decisionmaking responsibility and primary residential responsibility should remain with Robin McAllister, with "fairly liberal" visitation for Mark McAllister, including allowing E.M. to attend McAllister family functions. She also recommended that Robin McAllister should inform Mark McAllister of all of E.M.'s school functions and list Mark McAllister as an emergency contact for E.M.

¶ 7 In its Supplemental Memorandum Opinion, Amended Findings of Fact, Conclusions of Law and Order for Judgment the district court stated, "There is no evidence that Robin is an `unfit' parent." The district court further noted the custody investigator "did not believe E.M. to be at risk of serious harm or detriment in his mother's custody." (Emphasis in original). The district court concluded a best interests analysis was unnecessary and granted decisionmaking responsibility and primary residential responsibility to Robin McAllister, but also stated Mark McAllister has the "right to be considered a psychological parent with legal standing and significant visitation rights."

¶ 8 The district court discussed Mark McAllister's role in E.M.'s life:

A person who provides a child's daily care and who, thereby, develops a close bond and personal relationship with the child becomes the psychological parent of what sic child to whom the child turns to for love, guidance, and security. Here, Mark, on a day to day basis from the time of E.M.'s birth through March 6, 2008, and again through regular visitation, has been that person to E.M.. Mark has fulfilled E.M.'s psychological needs for a parent as well as E.M.'s physical needs....
As a psychological parent, Mark should be granted liberal visitation rights. This visitation will not only further the bond between Mark and E.M., but also foster the bond between the three young brothers, the youngest two whom reside with Mark.
Thus, Mark is entitled to all legal rights set forth in Section 14-09-28 of the North Dakota Century Code.
The district court made the following findings of fact:
1. It is in the best interest of the minor child, E.M., ... that his legal and physical custody be given to his mother, Robin, soon to be Robin Marsolek.
2. Mark is a physiological sic parent to E.M. and entitled to reasonable visitation and related rights as follows:
A. Every other weekend from Friday at 5:00 p.m. to Sunday at 5:00 p.m., these weekends to coincide with the weekends that Mark retains custody of M.M. and N.M..
B. Two non-consecutive uninterrupted weeks during the summer, again to coincide with weeks that Mark also retains custody of M.M. and N.M.;
C. Every other Thursday after school at approximately 2:42 p.m. to 7:00 p.m.; and
D. Part of Christmas Day for the McAllister family Christmas and, if not mutually agreed to, specifically 10:00 a.m. to 3:00 p.m. Christmas Day.
3. Robin must/will invite Mark to special school events for E.M., so Mark can attend and bring M.M. and N.M. when appropriate.
4. Robin must/will provide Mark with E.M.'s progress reports, which includes but is not limited to, copies of report cards, written medical and dental reports, etc.
5. As a psychological parent Mark is entitled to all legal rights set forth in § 14-09-28 of the North Dakota Century Code.

¶ 9 In its original Memorandum Opinion, Findings of Fact, Conclusions of Law and Order for Judgment, the district court also granted Mark "the right to obtain all necessary medical and dental care for E.M. including psychological counseling and psychiatric care, if applicable." This language was removed after a hearing was held in April 2009 and does not appear in the district court's final opinion. The district court explained its reasoning during the April hearing:

I was intending to give him specifically all these special information rights, for E.'s good, not to Robin's detriment, but for E's benefit and Mark's benefit, and the bonding group of the boys with Mark, just because he would be seeing so much of E. in the context of seeing him with the boys, but the access to information. Not the right to make determinations as to care, those would be Robin's under my decision.

¶ 10 The district court's decision in this case was not intended to affect Tharaldson's parental rights or duties. The district court explained, "Legal and physical custody of E.M. should remain with Robin, noting that Michael Tharaldson may have some existing legal rights...

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