Mower County District Court File No. F398460
Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and
In an action for modification of custody, when a district court is first presented with affidavits containing allegations of child endangerment and then presented with revised and contradictory affidavits from the same affiants, the court is strongly encouraged to hold an evidentiary hearing to determine the truth of the matter.
The opinion of the court was delivered by: Gordon W. Shumaker, Judge
Reversed and remanded; motion granted
Appellant-father alleges that the district court abused its discretion when it declined to hold an evidentiary hearing before denying his motion to modify custody. He argues that the court erred when it refused to give sufficient weight to the initial affidavits of respondent-mother's parents, which favored appellant-father, but were later contradicted by subsequent affidavits from respondent-mother's parents. Because of the seriousness of the allegations and the contradictory nature of the affidavits by the same affiants, we reverse and remand for an evidentiary hearing.
Appellant-father Christopher R. Kamp and respondent-mother Tracie Ann Griese are the parents of a daughter, L.A.G., who was born in 1995. Griese has sole physical custody of L.A.G., and for the past two years both have lived in the home of Griese's parents, Daryl and Betty Griese (collectively, the grandparents).
On November 21, 2002, Kamp filed a change-of-custody motion, which was accompanied by affidavits from Kamp, Daryl Griese, Betty Griese, and Tracie Ann Griese's ex-boyfriend, Kevin Johnson. In his motion, Kamp alleged that Griese's endangerment of the child and a change in circumstances warranted a custody modification. Kamp's affidavit stated that the child has expressed concerns for her safety, recounting L.A.G.'s statements that Griese hit her when Griese was under the influence of drugs, took L.A.G. to parties where drugs were being used, and smoked marijuana in her vehicle with L.A.G. present. Johnson's affidavit stated that Griese excessively used drugs, she used drugs in L.A.G.'s presence, and she hit L.A.G. for no reason.
Daryl Griese's initial affidavit stated, among other concerns, that Griese "is currently using drugs frequently," "smokes pot and uses other drugs around [L.A.G.]," has an extensive drug problem that "she cannot resist *á*á* even for a short period of time," takes L.A.G. to parties where drugs are used, drives recklessly, has driven while under the influence of drugs and with L.A.G. in the car, does not carry auto insurance, and "puts the child in extremely dangerous situations." Daryl stated that Griese "has done no child care," has been "passed out upstairs" while L.A.G. was downstairs unsupervised, and that, when the grandparents are not present, "[L.A.G.] is neglected." He concluded his affidavit by stating that giving custody to Kamp is "the best way to insure that the child is safe."
The content of Betty Griese's initial affidavit was nearly identical to that of Daryl Griese, but Betty added that Griese's drug use had been escalating, L.A.G. will be harmed if she remains in Griese's custody, L.A.G. "is in extreme immediate danger of physical harm because of [Griese's] uncontrolled drug use," and Griese "is a flight risk with the child," suggesting that Griese will "take [L.A.G.] out of state and hide."
In response, Griese filed an opposing affidavit denying the allegations in the affidavits of Kamp, Johnson, and Griese's parents. She stated, among other things, that she has smoked marijuana in the past, but has not smoked marijuana "for some time now."
Two weeks after they submitted their initial affidavits, the grandparents filed additional affidavits that qualified and directly contradicted portions of their prior affidavits. These additional affidavits stated that the grandparents "can't prove that [Griese] is using drugs," though they have noted "some strange behavior, which may have been caused by drugs," and that Daryl "has smelled things that [he] think[s] smelled like marijuana." The grandparents also minimized their prior-stated fear of "physical harm" to L.A.G. as merely being their fear that Griese would prevent L.A.G. from seeing them. They stated that they "certainly suspect" that Griese has driven a car while under the influence of drugs, but they "have no evidence" that she has done so. The affidavits also stated that even though they suspect and have heard rumors that Griese's friends do drugs, they have never seen them do so. They said that their prior statements that Griese was "passed out" were inaccurate, restating that Griese ...