N.D. Supreme Court overturns ruling in case of Grand Forks couple who sued for visitation rights with grandchildren
BISMARCK – The state Supreme Court has reversed a ruling in a case that awarded visitation to a Grand Forks couple who sued their son and his longtime partner for visitation rights with their three grandchildren.
In a unanimous 5-0 decision, the court ruled Tuesday that Grand Forks District Court Judge Lawrence Jahnke made a mistake when he awarded extensive visitation to Diane and Robert Bjerke.
The Bjerkes sued their son Cory and his partner, Naomi Sterf, for visitation in September 2012 following unsuccessful mediation attempts. The Bjerkes claimed the children’s parents hadn’t let them voluntarily see the kids since 2011.
The state Supreme Court’s decision states that Jahnke had a “clearly erroneous view” of the law in his visitation decision, which awarded the elder Bjerkes the right to see their eldest grandchild anytime the grandchild wished.
The children’s father argued on his own behalf before the high court on March 25 that the arrangement interfered with his ability to parent his daughter.
“We are the protector of our children, we are the decider of the best interests of our children,” Cory Bjerke told the justices, but Jahnke’s order didn’t take that into account, he said.
Bjerke testified that ongoing tension between the couple and his parents created negative situations for the family, and said ongoing visitation was making the situation worse.
He said his parents had undermined his and the children’s mother’s ability to parent their children, and that the lower court had failed to recognize this.
“There’s no deference given to a fit parent,” he said.
Cory Bjerke also told the court his decision to represent himself at the appeal was largely financial.
He told The Forum of Fargo-Moorhead in a past statement that the ongoing court case had been a considerable drain on the family’s resources.
In giving control of visitation to the couple’s eldest child, the justices wrote, Judge Jahnke had done exactly what the U.S. Supreme Court warned against in the landmark case Troxel v. Granvillem in 2000.
The case was the one that originally established grandparent visitation as a right.
In that case, the Supreme Court warned that judges are supposed to presume that a parent’s decision on visitation is made in the child’s best interests, they wrote.
Jahnke did the exact opposite in his decision, saying he saw nowhere where the parents had shown the grandparents’ visiting the children would harm them, the North Dakota high court said in its ruling.
That placed the burden of proof on the parents, the higher court wrote, instead of on the grandparents, where it belonged.
Jahnke’s original order also specified that the two other children spend numerous holidays, birthdays and summer vacations with their grandparents.
That level of visitation was comparable to that which is often granted to noncustodial parents, the justices wrote.
Grandparents don’t have the same rights to visitation as parents, the higher court wrote.
Diane and Robert Bjerke had asked Jahnke to hold their son and his partner in contempt, after they said the couple refused to comply with the terms of Jahnke’s visitation orders.
The state Supreme Court decision remands the case to the lower court for another look.
Because Cory Bjerke and his partner have moved to Oregon with their children since Jahnke’s original visitation order, the terms of visitation would need to be readdressed anyway, the justices pointed out.
In a separate decision, the state Supreme Court overturned part of another grandparent visitation case in which Jahnke had ordered a half-hour of visitation for a paternal grandmother for every day the child’s mother was in Grand Forks.
In this case, the justices wrote that Jahnke improperly placed the burden on the parent to show that grandparent visitation was not in the child’s best interests.
The attorney for the mother in that case, Kari Winning, said the separate decisions were “tremendously helpful” in offering guidance for other family law attorneys in the state about when and how grandparent visitation is appropriate.
“I don’t think that they will have a chilling effect on grandparents” filing for visitation, she said.
The elder Bjerkes could not be reached for comment.