Court-ordered psych eval ok’d

A father seeking parenting time could be ordered to take a psychological evaluation when the order was based on concerns about the parent’s mental health and fitness and no less-restrictive means to determine the parent’s fitness exist, the Court of Appeals ruled in Newstrand v. Arend.

The court said that Minn. Stat. sec. 518.131, subd. 1 does not violate the parent’s freedom of conscience under those circumstances.

“[T]he record contains substantial evidence that supports the district court’s findings regarding its concern and the [guardian ad litem’s] concern about father’s abusive treatment of mother and his successful, ongoing efforts to alienate the children from mother,” wrote Judge Heidi Schellhas for the court.

The Court of Appeals also said that a district court may restrict parenting time without making findings on the statutory best interests of the child factors.

Minneapolis attorney Kellen Fish, who represented the appellant, said that it was difficult to see that the court recognized  Arend’s constitutional rights but overrode them with the state’s “compelling interest.” It was also tough to see that the options for less-restrictive alternatives were not mentioned in the opinion when they were part of the district court record. Fish said that the court used the proper balancing test but reached the wrong conclusions.

Freedom of conscience

The parties had three children. Father had custody of two children and mother had custody of one child, J.J.I.A., pursuant to a stipulation reached by the parties. But the father refused to participate in a psychological evaluation, a parenting assessment or a co-parenting course, citing religious reasons. The district court said that the father’s exercise of his conscience did not obviate the statutory factor of his mental health in evaluating his parenting time. It required father’s parenting time to be “closely supervised.”

The father countered that Minn. Stat. sec. 518.131, which authorizes the psychological evaluation requirement, was unconstitutional as applied pursuant to Article I, section 16 of the Minnesota Constitution. (See sidebar for text of Constitution.) He said that his Rastafarian beliefs did not allow him to submit to a psychological examination and that the court’s order violated his freedom of conscience.

The court applied a compelling state interest balancing test, comparing the sincerity of the obligee’s belief, the burden of the state action on the exercise of religious beliefs, whether the state interest in the regulation is overriding or compelling and whether the state regulation uses the lease restrictive means.

Neither the mother, the state nor the district court questioned the sincerity of father’s convictions.

The court then analyzed whether the law as applied burdened the father’s exercise of religious beliefs. It concluded that it did since the district court drew a negative inference from the father’s refusal, thereby forcing him to undergo a psychological evaluation or have his parenting time restricted. The burden was real, not remote, and potentially interfered with the parent-child relationship.

The court then determined that the state’s interest in the father’s submission to testing was overriding because the state has a compelling interest in safeguarding the physical and psychological well-being of children. The court rejected the father’s arguments that he had worked with the guardian ad litem and that the court had ample opportunity to observe him during the proceedings.

Both the district court judge and the guardian also expressed concerns about the father’s mental health, his treatment of the mother and his ongoing attempts to alienate the children from the mother. The record supports the district court’s determination that father secured custody of two of the children due to his success in alienating them from their mother, the Court of Appeals said.

The state used the least restrictive means necessary considering that the father had not identified any specific less-restrictive alternative to a psychological evaluation, the appellate court concluded, reasoning that the father’s “vague and conclusory argument” didn’t satisfy the state’s interest in protecting the children.

Best-interests findings not required

The appellate court went on to hold that the plain language of Minn. Stat. sec. 518.175, subd. 1 does not require findings on the best interest factors when determining parenting time. The best interest factors address custody, not parenting time. The parenting time statute requires only that the court award sufficient time to enable the parent and child to maintain a relationship that will be in the best interests of the child. It allows restricted parenting time when the court finds that the child’s physical or emotional health is endangered or the child’s emotional development is impaired.

The district court judge’s determination that a mental health exam and supervised visitation were necessary to protect the child from the father’s campaign of alienation from the mother was not clearly erroneous, the Court of Appeals said. Additionally, the judge made numerous other findings relative to the child’s best interests.

Minnesota Constitution, Article 1, Sec. 16 [T] he right of every man to worship God according to the dictates of his own conscience shall never be infringed; …  nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state …