Minn. Stat. § 480A.08, subd. 3 (1996).
Teresa Dukowitz, petitioner,
Ramsey County District Court
File No. F5-90-3232
Michele M. Danielson, Clapp & Erickson, 1450 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for respondent).
Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.
Appellant-mother Teresa Dukowitz appeals the district court's order adopting the parties' stipulation regarding visitation. We assume the order is appealable and affirm.
Visitation of A.M.D. by appellant was problematic and, on June 8, 1995, the district court ordered them to participate in integration therapy and directed that visitation was to be determined by the integration therapist and A.M.D.'s guardian ad litem. The problems continued.
On May 5, 1997, the guardian submitted her report and recommendation to the court. The report was predominantly negative toward appellant, noting that she refused to cooperate with the assigned domestic relations division worker, interfered with therapy, and incessantly involved A.M.D. in court issues and in appellant's anger and resentment about the dissolution and visitation. The report indicated that A.M.D. was "physically and emotionally afraid of seeing her mother" and that during visitation appellant would subject her to long talks "guilting me about living with my dad." A.M.D. described her life with appellant as "hell" and said she was angry at appellant and resentful toward her and that she did not trust her. A.M.D. refused to visit with appellant.
The report also notes two incidents that disturbed A.M.D. In the first, appellant's boyfriend waited for A.M.D. to get off the bus after school and encouraged her to call appellant. A.M.D. was frightened. The second incident involved appellant's unannounced appearance at a school volleyball game in which A.M.D. was participating. A.M.D. was so upset that she left the game and sat in the locker room. The guardian's report stated: "[A.M.D.] deserves the opportunity to participate in her school plays, sports, etc. without the stress and worry regarding whether her mother will appear, what she will say, and what she might do." Stating that A.M.D. "is now old enough to be articulate about her issues with her mother," the guardian concluded that it is not in A.M.D.'s best interests that she have a relationship with appellant at this time. The guardian also concluded that appellant should not have access to A.M.D.'s private records because she "tends to use these records as a basis to continue her vilification of [A.M.D.]; continue litigating; it results in harm to the child."
The district court held an evidentiary hearing on the issue of A.M.D.'s custody on October 20, 1997. The hearing included a consideration of the guardian ad litem's report and the court's in camera interview of A.M.D., then 14 years old. At the hearing the parties stipulated that appellant's "visitation with [A.M.D.] will be reserved and shall resume at such time and under such conditions as [A.M.D.] shall determine." They also stipulated that appellant may send up to four letters a month to A.M.D. and that respondent will have physical custody of A.M.D. They did not agree on the characterization of custody as temporary or permanent. The court approved the stipulation; awarded sole permanent physical and legal custody of A.M.D. to respondent; prohibited appellant from attending A.M.D.'s school events or extracurricular activities without A.M.D.'s invitation; and denied appellant access to private records but allowed one annual conference with A.M.D.'s school social worker.
Visitation of children and the noncustodial parent is governed by Minn. Stat.
§ 518.175 (1996). Minn. Stat. § 518.175, subd. 1(a), provides:
[T]he court shall, upon the request of either parent, grant such rights of visitation on behalf of the child and noncustodial parent as will enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child. If the court finds, after a hearing, that visitation is likely to endanger the child's physical or emotional health or impair the child's emotional development, the court shall restrict visitation by the noncustodial parent as to time, place, duration, or supervision and may deny visitation entirely, as the circumstances warrant. The court shall consider the age of the child and the child's relationship with the noncustodial parent prior to the commencement of the proceeding.
Appellant freely stipulated to the reservation of the visitation until A.M.D. determines otherwise. The court approved the stipulation. A party must be aggrieved by a court determination to have an appealable issue. Twin Cities Metropolitan Public Transit Area v. Holter, 311 Minn. 423, 425, 249 N.W.2d 458, 460 (1977). A party who freely and voluntarily stipulates to a court order cannot reasonably be said to be aggrieved.
Even if appellant arguably has raised an appealable visitation issue, the court did not err in approving the stipulation. Minn. Stat. § 518.175, subd. 1(a) (1996), requires the court in setting visitation to consider the child's age and "relationship with the noncustodial parent prior to the commencement of the proceeding." The court did so. The court also gave substantial weight to A.M.D.'s preference, stated by A.M.D. as an adamant refusal to have contact with appellant at this time. In Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991), we held that the preference of an "older teenage child" is an "overwhelming consideration" in assessing endangerment in custody determinations. A similar deference is proper in making visitation determinations. See also Barrett v. Barrett, 394 N.W.2d 274, 279 (Minn. App. 1986) ("Given the children's ages, their choices and preferences must be seriously considered in determining visitation."). Although A.M.D. at age 14 is not an "elder teenager," the guardian ad litem described her as being old enough to be articulate about the issues, and the district court, through the in camera interview with A.M.D., had an opportunity to assess her maturity and awareness. The district court considered A.M.D.'s preference in the context of the extensive factual history of appellant's destructive behavior toward A.M.D. This was a proper exercise of discretion. Furthermore, although the court deferred to A.M.D. on this issue, it did not abdicate its jurisdiction over the case or over visitation and custody questions.
Under Minn. Stat. § 518.17, subd. 3(b) (1996), the court may waive the noncustodial parent's right of access to a child's private records and right to attend school conferences "if it finds it is necessary to protect the welfare of . . . a child." Considering A.M.D.'s preferences, her corroborated concerns, and appellant's lack of insight into and poor judgment about A.M.D.'s emotional health, these restrictions sadly are both necessary and proper.