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In re Kayachith

July 20, 2004

IN RE BILL KAYACHITH AND SUSAN KAYACHITH, PETITIONERS
IN RE THE CUSTODY OF: A.V.A., BILL AND SUSAN KAYACHITH, PETITIONERS,
v.
RATCHANEEWAN AND VILAYSACK ATHAKHANH, RESPONDENTS, AND KAYSONE ATHAKHANH, RESPONDENT.



Hennepin County District Court. File No. MF 284252.

Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Harten, Judge.

SYLLABUS BY THE COURT

To have standing to petition for custody of a child as an "interested third party," as defined in Minn. Stat. §§ 257C.01, subd. 3,.03, subd. 7 (2002), the petitioner must have a substantial relationship with the child that exists at the time the petition for custody is filed.

The opinion of the court was delivered by: Toussaint, Chief Judge,

Writ of Prohibition Granted

SPECIAL TERM OPINION

Melinda Athakhanh (mother) and Souvorachak Kayachith (father), and their child lived in the home of father's parents since the child was born in April 2000. In March 2003, while driving to Georgia to visit mother's family, mother and father were killed in a car accident. The child survived and continued to live with her paternal grandparents. The current dispute involves competing petitions for custody of the child filed by the child's paternal grandparents and mother's cousins, whose prior contact with the child at the time they petitioned for custody, was limited.

The district court "merged" the two custody files, awarded paternal grandparents temporary legal and physical custody of the child, ruled that cousins were "interested third parties" who could seek custody under Minnesota Statutes Chapter 257C, suspended discovery so that a court-appointed therapist could evaluate the child, and awarded cousins visitation with the child. This court then issued a writ of prohibition, ruling that cousins had not shown standing to seek custody of the child and preventing the district court from enforcing its visitation award to cousins. Cousins then sought to amend their custody petition, and grandparents opposed that amendment. Grandparents also sought appointment of a new therapist, and moved the district court judge to recuse himself from the case for bias. Requests for other relief were also made. After a hearing, the district court ruled from the bench that (a) he would not recuse; (b) cousins would be allowed to amend their petition; (c) grandparents' motion for appointment of a new therapist was denied; and (d) the rulings would not be stayed pending grandparents' petition to this court for extraordinary relief. Written orders followed the next day. Grandparents asked this court for a writ of prohibition to preclude (a) the district court judge from making further rulings in the case; (b) the district court from giving effect to cousins' amended custody petition; and (c) the enforcement of orders allowing the therapist to facilitate visitation. By order, this court held that cousins lacked standing to seek custody of the child, otherwise denied relief, and stated that a special term opinion would follow, addressing the standing question.

Prohibition can issue if the district court exceeded its lawful authority or so abused its discretion as to cause an injury for which no ordinary remedy is adequate. Hancock-Nelson Mercantile Co. v. Weisman, 340 N.W.2d 866, 868 (Minn. App. 1983). Prohibition does not lie where an appeal provides an adequate remedy. Bellows v. Ericson, 233 Minn. 320, 325, 46 N.W.2d 654, 658 (1951).

In 2002, the legislature enacted Chapter 257C to address requests for custody and visitation made by certain nonparents. See 2002 Minn. Laws. Ch. 304, §§ 1-6, 13 (enacting Chapter 257C). Under Chapter 257C, custody may be awarded to "interested third parties," among others. A non-parent's petition for custody must "state and allege" a "basis for jurisdiction" by asserting that the petitioner is an "interested third party" or other person entitled to seek custody under the statute. Minn. Stat. § 257C.03, subd. 2(a)(5) (2002). An "[i]nterested third party" is a nonparents, other than a de facto custodian, "who can prove at least one of the factors" in Minn. Stat. § 257C.03, subd. 7(a) (2002). Minn. Stat. § 257C.01, subd. 3(a). Under Minn. Stat. § 257C.03, subd. 7(a):

To establish that an individual is an interested third party, the individual must:

(1) show by clear and convincing evidence that one of the following factors exist:

(i) the parent has abandoned, neglected, or otherwise exhibited disregard for the child's well-being to the extent that the child will be harmed by living with the parent;

(ii) placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or ...


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