Bredeson v. Mackey
2014 ND 25
| N.D. | 2014Background
- Parents: Lindsey Bredeson (primary residential parent since birth) and Kyle Mackey (father); child O.B., born 2010.
- Kyle Mackey incarcerated (sentence imposed for Gross Sexual Imposition prior to child’s birth); visitation at James River Correctional Center previously found upsetting to the toddler.
- On Jan 23, 2013, district court gave Bredeson discretion over in-person secured-facility visitation and required electronic/telephone contact while Mackey is incarcerated; Mackey did not appeal that order.
- Mackey married Amber Mackey (Apr 12, 2013); Bredeson later married Kraig Gellner (May 18, 2013).
- Mackey moved (Apr 22, 2013) to modify parenting time alleging Bredeson denied visitation for several months, and petitioned (May 17, 2013) for non-parental visitation for Amber claiming a psychological bond with O.B.
- District court denied both the modification and the non-parental visitation petitions (June 27, 2013); Mackey appealed.
Issues
| Issue | Plaintiff's Argument (Bredeson) | Defendant's Argument (Mackey) | Held |
|---|---|---|---|
| Whether a material change of circumstances justified modifying Mackey’s parenting time | Bredeson argued she exercised discretion consistent with the court’s prior order and visits at the facility upset the child | Mackey argued Bredeson frustrated/withheld visitation (Jan–May), attempted alienation, and the parties’ remarriages constitute a material change | Court: No material change shown; Bredeson exercised discretion, marriages did not demonstrate impact on child; denial affirmed |
| Whether exceptional circumstances existed to grant non-parental visitation to Amber Mackey | Bredeson argued Amber did not have a longstanding or psychological-parent relationship with O.B. | Mackey argued his incarceration is an exceptional circumstance and Amber spent periodic time with O.B., creating a psychological bond and facilitating his visitation | Court: No exceptional circumstances — Amber lacked the required established/psychological-parent relationship; petition denied |
Key Cases Cited
- Seibold v. Leverington, 837 N.W.2d 342 (N.D. 2013) (standard of review and deference for parenting-time decisions)
- McAllister v. McAllister, 779 N.W.2d 652 (N.D. 2010) (non-parent visitation and psychological parent doctrine)
- Dufner v. Trottier, 778 N.W.2d 586 (N.D. 2010) (material-change standard for modifying visitation)
- Simburger v. Simburger, 701 N.W.2d 880 (N.D. 2005) (statutory framework for parenting time after primary residential award)
- Siewert v. Siewert, 758 N.W.2d 691 (N.D. 2008) (remarriage can be a material change when it affects children via conflict)
- Hamers v. Guttormson, 610 N.W.2d 758 (N.D. 2000) (parents’ paramount custody rights; non-parent visitation only for exceptional circumstances)
- Quirk v. Swanson, 368 N.W.2d 557 (N.D. 1985) (extending grandparent-custody rationale to non-parent visitation where exceptional circumstances exist)
- Edwards v. Edwards, 777 N.W.2d 606 (N.D. 2010) (recognition of stepparent as psychological parent in appropriate circumstances)