All in the Family: Child affidavits in custody proceedings?

On Feb. 19, 2019, the Minnesota Court of Appeals issued an unpublished custody modification decision in In re the Marriage of Rothen.

Reversal was not terribly surprising. However, the fact that the affidavits from the parties’ children were received into evidence, and considered by the Fillmore County District Court, raises some eyebrows.

Father and Mother were divorced in November 2015. By agreement, Mother was granted sole physical custody of the parties’ four minor children: HMR, JDR, MER, and JJR.

In March 2018, HMR, 14 years old at the time, moved into Father’s home. Father alleged that HMR refused to continue to live with Mother and expressed a desire to remain in Father’s care.

Father filed a motion for emergency temporary custody of HMR. Neither party was represented by counsel.

In his affidavit, Father alleged that Mother physically and emotionally abused the children and neglected their medical needs. Father also alleged that JDR was failing in school.

Affidavits from HMR and MER were also filed with the Court. Those affidavits repeated many of the same allegations raised by Father.

HMR accused Mother of excessive drinking. She also alleged that Mother physically abused the children when Mother drank – including hitting JDR with a vacuum cord and throwing MER against a wall. HMR alleged that Mother refused to take HMR to the doctor when she had strep throat and discussed the declining grades of the children.

Ultimately, HMR asserted that she wanted to live with Father.

MER was 11 years old at the time she submitted her affidavit. MER’s affidavit alleged that Mother threw her against a wall, failed to take MER to the dentist to treat her cavities, refused to provide adequate clothing, and refused to feed her.

Relying upon the “endangerment” standard within Minn. Stat. sec. 518.18, Father moved for sole physical and legal custody of the children.

Mother denied some allegations, contextualized others, and requested that the District Court deny Father’s motion.

The District Court declined to order an evidentiary hearing as to JDR, MER and JJR, finding that the affidavits submitted by father failed to establish a primae facie basis for custody modification. The court did, however, find a primae facie basis for the modification of the custody of HMR.

Prior to the evidentiary hearing concerning HMR, the parties agreed that Father would be granted sole physical custody of HMR. Father subsequently filed an appeal, challenging the District Court’s decision that an evidentiary hearing on custody modification for the other three children was not warranted.

In the appellate decision, Chief Judge Edward Cleary began with a recitation of the general principles applicable to a motion to modify custody.

He noted that “[t]he district court must first take the facts in the moving party’s affidavits, disregard the contrary allegations in the nonmoving party’s affidavits, and consider the allegations in the nonmoving party’s affidavits only to the extent they explain or contextualize the moving party’s allegations.”

Cleary suggested that “[n]ext, the district court must determine whether the moving party has made a primae facie showing for modification…[and if] the party establishes a primae facie case, the district court must hold an evidentiary hearing.”

The court went on to opine that to make a primae facie case for an endangerment-based motion to modify custody, the moving party “must allege: (1) the circumstances of the children or custodian have changed; (2) modification would serve the children’s best interests; (3) the children’s present environment endangers their physical health, emotional health, or emotional development; and (4) the benefits of the change outweigh its detriments with respect to the children.”

The Court of Appeals took issue with a number of findings made by the District Court.

First, Cleary concluded that the District Court abused its discretion in finding that Father’s affidavits failed to allege a change in circumstance since the issuance of the divorce decree.

While Mother attempted to explain the circumstances surrounding the claims Father made, the court of appeals determined that “father has sufficiently alleged a change in circumstances.” Cleary noted that Mother’s drinking habits had evolved and that two of the children are now concerned about it. Moreover, he found that there were no allegations of declining grades, neglect by Mother, or assaulting a child at the time of the divorce decree.

Interestingly, the Court of Appeals used the behavior that it ultimately found to endanger the children as a basis to find a change in circumstance.

Second, the Court of Appeals considered whether the District Court abused its discretion in failing to find that the requested custody modification would serve the best interests of the children. In applying the allegations raised by Father against the “best interest” factors found within Minn. Stat. sec. 518.17, opined that “[t]aken as true, these allegations preliminarily establish that modifying custody is in the best interests of the children.”

Third, the Court of Appeals considered the “endangerment” prong of the custody modification statute. In doing so, the court suggested that “[t]he concept of endangerment is unusually imprecise” but requires a “showing of a significant degree of danger.” An “actual adverse effect on the children” must be present.

Cleary provided a helpful framework for understanding the scope of “endangerment” by referencing: (1) allegations of physical abuse; (2) allegations of emotional abuse; (3) behavior problems on the part of a child; (4) poor school performance; and (5) fear of a parent.

Ultimately, the Court of Appeals held that the lower court abused its discretion, reversed, and remanded for an evidentiary hearing.

The bigger question involves whether an affidavit from a child has a place in a custody proceeding.

Conventional wisdom suggests that children should be kept as far away from family court proceedings as possible, and that no child should be placed in a position of being asked to criticize a parent.

The submission of affidavits written by a 14- and 11-year-old child shocks the conscience. Father had no business doing so. Of course, he was unrepresented and may not have known better.

Still, the fact that both courts considered them, seemingly without criticism of submission, is even more surprising. The submission of the children’s affidavits was completely unnecessary. If Father outlined his claims in his affidavit, and his allegations are to be accepted as true for purposes of establishing a primae facie basis to modify, Father could meet his evidentiary threshold. The court had the option to interview the children privately in chambers if necessary.

The District Court should have refused to consider the children’s affidavits. And the Court of Appeals should have said something about it.

Jason and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices, P.A., a northwest Twin Cities divorce and family law firm.