In re the Matter of: Cindy Jean Oberg obo minor child v. Gregory Brian Bradley, 2015 Minn. App. LEXIS 56

Parents Cindy Oberg (petitioner/respondent) and Gregory Bradley (appellant) share custody of their 12-year-old son G.; dispute arose after G. alleged Bradley excessively spanked him during parenting time.
Oberg petitioned for an Order for Protection (OFP) under Minn. Stat. § 518B.01; initial hearing ordered Oberg to email Bradley notice of any out-of-court statements by G. she intended to use.
Oberg emailed notice to an incorrect address; Bradley did not receive the statutory notice and appeared at the continued hearing without counsel; he later learned Oberg had retained counsel and intended to offer G.’s out-of-court statements.
At the hearing, testimony from G.’s mental-health case manager (MHCM), psychologist, and Oberg described G.’s out-of-court statements; G. did not testify in court.
The referee found Bradley committed domestic abuse against G., posed a credible threat, and placed custody with Oberg and supervised parenting time for Bradley; the district court confirmed the OFP.
Bradley appealed, arguing (1) notice and due-process violations from admitting G.’s out-of-court statements, and (2) insufficient evidence to meet the required proof standard.

Issue	Oberg's Argument	Bradley's Argument	Held
Standard of proof required to issue an OFP under Minn. Stat. § 518B.01	Statute implies petitioner must show sufficient evidence; preponderance should apply	No explicit standard in § 518B.01; unclear whether preponderance required	Court: Preponderance of the evidence applies (statute’s surrounding provisions and precedent imply this)
Admissibility of G.’s out-of-court statements under Minn. R. Evid. 807	Statements were material, more probative than other evidence, and admission served interests of justice	Admission violated due process because Bradley lacked notice and G. did not testify	Court: Admission did not violate due process; statements properly admitted under Rule 807
Whether lack of G.’s in-court testimony deprived Bradley of a “full hearing”	Admission of statements still allowed a full hearing; no statutory right triggered by deleted language	Absence of G.’s testimony denied statutory/full hearing and prejudiced defense	Court: No statutory right to require G.’s testimony; no denial of due process found
Sufficiency of evidence to support OFP (abuse/excessive punishment)	Testimony of MHCM, psychologist, Oberg and other evidence made abuse more likely than not	Without G.’s out-of-court statements, evidence was insufficient to meet preponderance standard	Court: Preponderance satisfied; district court did not abuse its discretion in issuing OFP

Bjergum v. Bjergum, 392 N.W.2d 604 (Minn. App. 1986) (OFP reversed where evidence was insufficient)
Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273 (Minn. 2000) (statutory sections must be read in context)
Rixmann v. City of Prior Lake, 723 N.W.2d 493 (Minn. App. 2006) (legislative silence on standard of proof implies preponderance standard)
McIntosh v. McIntosh, 740 N.W.2d 1 (Minn. App. 2007) (granting relief under § 518B.01 reviewed for abuse of discretion)
Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988) (party may not raise an issue at appeal that was not raised at trial)
Anderson v. Lake, 536 N.W.2d 909 (Minn. App. 1995) (construing "full hearing" language in OFP context)
El Nashaar v. El Nashaar, 529 N.W.2d 13 (Minn. App. 1995) (similar consideration of hearing requirements in domestic-abuse proceedings)
Johnson v. Smith, 374 N.W.2d 317 (Minn. App. 1985) (custody modification reversed where multiple witnesses found child not endangered)
Andrasko v. Andrasko, 443 N.W.2d 228 (Minn. App. 1989) (OFP requires present harm or intent to do present harm)