845 N.W.2d 625
N.D.2014Background
- Kulbacki and Michael divorced; they have one daughter. Michael was incarcerated on multiple violent charges and later faced federal imprisonment. Kulbacki lives in Arizona and filed to terminate Michael’s parental rights in Arizona.
- Michael and his mother, Shawn Coulter, filed a joint motion in North Dakota for grandparent visitation under N.D.C.C. § 14-09-05.1 during the divorce proceedings; Coulter was not separately made a party.
- Kulbacki did not attend the North Dakota hearings. The district court granted Coulter limited unsupervised visitation (½ hour per day when Kulbacki is in Grand Forks) and awarded Kulbacki legal custody.
- The district court found § 14-09-05.1 constitutional and ruled that termination of Michael’s parental rights would not automatically end Coulter’s visitation rights.
- The court denied Kulbacki attorney fees under N.D.C.C. § 14-09-29(4) (domestic-violence-related fee-shifting), reasoning evidence did not show a qualifying pattern or serious injury and noting Kulbacki had returned to Michael after abuse.
- Kulbacki appealed, arguing procedural defects in the visitation award, constitutional infirmities in § 14-09-05.1, improper allocation of burdens, erroneous ruling on the effect of parental-rights termination, and improper denial of statutory attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural standing — was a grandparent’s separate filing required? | Kulbacki: Coulter was not a party and did not properly move for visitation. | Michael/Coulter: Their joint motion provided sufficient notice and invoked the statute. | Court: Coulter’s joint motion with Michael satisfied due process and statutory minimums; a grandparent must file a formal request but need not be a separate named party. |
| Facial constitutionality of § 14-09-05.1 | Kulbacki: Statute fails to give deference to parental decisions; infringes parental liberty. | Michael/State: Statute requires best-interest finding and noninterference with parent-child relationship, which is narrowly tailored. | Court: § 14-09-05.1 is constitutional under U.S. and ND Constitutions. |
| As-applied constitutionality — burden of proof | Kulbacki: District court shifted burden to custodial parent to disprove visitation. | Michael: District court’s findings justified award. | Court: District court unconstitutionally placed burden on Kulbacki; burden rests with movant to prove statutory requirements. Case reversed and remanded on this point. |
| Effect of termination of parent’s rights on grandparent visitation | Kulbacki: Visitation should terminate or be revisited if parental rights are terminated. | Michael/Court below: Statute does not automatically end grandparent visitation on parental-termination; visitation can be adjusted later. | Court: No automatic termination under § 14-09-05.1; district court correctly stated visitation does not automatically end, and Kulbacki may seek adjustment if parental rights are terminated. |
| Attorney fees under § 14-09-29(4) (domestic violence) | Kulbacki: As a domestic-violence victim, she is entitled to statutory fee shifting. | District court: Denied fees, citing insufficient pattern/serious injury and noting she returned to Michael. | Court: District court erred as a matter of law by considering Kulbacki’s return to the abuser; remanded to determine attorney fees under statutory criteria. |
Key Cases Cited
- Hoff v. Berg, 595 N.W.2d 285 (N.D. 1999) (struck down prior grandparent-visitation statute that created a presumption in favor of visitation)
- Troxel v. Granville, 530 U.S. 57 (2000) (U.S. Supreme Court: courts must give special weight to fit parents’ decisions about third-party visitation)
- R.F. v. M.M., 789 N.W.2d 723 (N.D. 2010) (burden of proof lies with movant seeking grandparent visitation)
- Clark v. Clark, 704 N.W.2d 847 (N.D. 2005) (procedural requirements for grandparent visitation requests)
- Alvarez v. Carlson, 474 N.W.2d 79 (N.D. 1991) (statutory protection for custodial parent via motion or separate action by grandparent)
- SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007) (statute requiring best-interest and noninterference satisfies Troxel)
- Currey v. Currey, 650 N.W.2d 273 (S.D. 2002) (similar statutory language upheld as constitutional)