The Court of Appeals of Minnesota ruled on April 26, 2011, that a district judge had appropriately ordered a lesbian mother who had relocated with her child to Arizona to pay half the costs of transporting the child between Arizona and Minnesota to effectuate the third-party visitation rights of the mother's former partner. The unanimous ruling in Hay v. King, 2011 Westlaw 1546586 (unpublished), found that the lack of specific statutory authorization for the award of such expenses was no barrier to the district court's exercise of equitable powers in aid of the best interest of the child.
The opinion for the court by Judge Edward Toussaint, Jr., unfortunately does not relate in detail the underlying facts of the case. Apparently, after the women's relationship ended the co-parent sued for joint custody and visitation, eventually withdrew her demand for custody, and ultimately obtained a third-party visitation order from the district court. After the visitation order went into effect, the legal mother moved with the child to Arizona, and the petitioner, Ms. Hay, applied to the court for financial assistance for travel expenses necessary to make it possible for visitation to continue.
The district judge then amended the visitation order, providing, in relevant part: "With respect to visits with [the child] in Minnesota, it is equitable to order the parties to equally share [the child's] airfare costs to and from Minnesota for court-ordered visits with [respondent]. It is in [the child's] best interests to continue to have a relationship with [respondent], and it is inequitable to require [respondent] to pay the entire cost of maintaining that relationship, especially when [appellant] unilaterally moved [the child] across the country knowing [respondent] had court-ordered visitation with [the child]. [Appellant] has demonstrated an ability to contribute to the cost of flying [the child] to and from Minnesota by her own frequent trips to and from Minnesota during the course of this proceeding."
Ms. King, the legal mother, argued that the court lacked authority to make this award because Hay had withdrawn her custody petition, so the statutory custody provision, which could support such an order, was not relevant, and the provision on visitation by itself did not support any such monetary award. The appeals court pointed out that the district judge was not relying on statutory authority to make this award. "Instead," wrote Judge Toussaint, "the district court made such an order because it considered it 'inequitable' not to do so, given the circumstances of appellant's departure to Arizona, and that it was in the child's best interests to continue to have a relationship with respondent." The court of appeals observed that lack of statutory authority for a trial court to order a party to defray the other party's visitation costs would not preclude an award that was in the best interest of the child.
The court noted a prior case, LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. App. 2000), review denied (Minn., May 16, 2000), in which a parent was ordered to defray travel expenses necessary for their former spouse to have visitation with the child after a move, and commented that refusal to award such relief for lack of express statutory authorization would be "inconsistent with the district court's common-law authority to grant equitable relief 'as the facts in each particular case and the ends of justice may require.'" Even though LaChapelle did not involve a third-party visitation award, the court insisted that "this distinction has no bearing on the propriety of apportioning visitation expense." The court also rejected the argument that this award could be characterized as a child support payment, and emphasized the "extensive discretion" of the district court in deciding visitation questions, asserting that "a reviewing court will not reverse a district court's resolution of such questions absent an abuse of that discretion."
The court of appeals found that the district court's findings "indicate the rationale for the decision to divide the child's travel expenses" and thus there was no abuse of discretion.
Hay is represented by Karim G. El-Ghazzawy and Jody M. Alholinna, of the El-Ghazzawy Law Offices in Minneapolis. King is represented by M. Sue Wilson and James T. Williamson, of the M. Sue Wilson Law Offices, also in Minneapolis.