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Emily Welker, Published September 07 2013

Judge's unusual ruling on grandparent visitation shocks attorneys

GRAND FORKS – In a ruling that defied predictions made by family law attorneys, a Grand Forks judge has upheld his decision to allow a 16-year-old girl free rein to visit her grandparents at any time, over the objections of her parents.

“This case has created an enormous amount of stress,” Cory Bjerke said in a statement with his partner, Naomi Sterf, the children’s mother.

Bjerke and Sterf are being sued by Cory’s parents for court-ordered time with the grandchildren.

“Our kids have two other sets of grandparents who were never considered in this case … [who] have a decent, respectful, loving relationship with all of us, and who are appalled at the thought that one would sue their own child,” Bjerke and Sterf said.

Bjerke and Sterf are considering appealing Grand Forks County District Court Judge Lawrence Jahnke’s ruling to the North Dakota State Supreme Court.

Attorneys in the region are closely watching the issue of grandparent visitation, said Bjerke’s attorney Jesse VanCamp.

“In some instances, parental rights are being minimized in favor of grandparents,” she said.

VanCamp argued in a motion for clarification that the judge’s order, which specified the eldest grandchild was free to visit grandparents Diane and Robert Bjerke “as she wishes, to include overnight visits,” would interfere with the parent/child relationship. VanCamp claimed the teenager would simply leave for her grandparents’ home after being disciplined by her parents, or after any other disagreement.

“At that age, generally relationships between parents and teenagers are pretty volatile,” VanCamp said. “Giving the teenager the opportunity to trump their parents under any circumstances is going to affect the relationship.”

The Bjerkes filed their lawsuit last September against their son and Sterf. It sought court-ordered visitation time with their three grandchildren, and was already considered a rarity in the family law community.

Having a set of grandparents sue their child made it unusual, and so did the fact that both parents are together and co-parenting.

Those elements, even without the judge’s order placing control in the hands of the child, already put the case in uncharted legal territory, legal experts say.

The judge’s ruling states that a mediation attempt between the parents and grandparents was unsuccessful.

The grandparents alleged they had not seen their grandchildren with their son’s voluntary cooperation since 2011, the year Cory Bjerke became convinced they had turned him in for a drug offense, the judge wrote.

Court documents state the eldest child lived with the elder Bjerkes, along with her mother, while Cory Bjerke served time for a drug-related offense.

At a May 7 hearing, Cory Bjerke said the conflict with his parents wasn’t about his previous drug and alcohol use.

Instead, he said, it came from his parents “undermining my authority.”

Interference?

Family law attorneys who spoke with The Forum had predicted Jahnke would modify his order.

Instead, Jahnke’s Aug. 29 order upheld his ruling. The order stated the parents failed to present credible evidence that the order would interfere with the parent-child relationship.

“I’m shocked. I strongly believe the judge will be reversed on appeal,” said Jane Sundby, a family law attorney in Fargo.

Sundby said she had not read the transcript of the hearing, but because the order appeared to give the teenager complete control over visitation, that alone, in her opinion, causes interference.

In the grandparents’ response, their attorney, Kari Winning, wrote, “Cory and Naomi have viewed visitation with Cory’s parents, Robert and Diane, with hostility. … Cory and Naomi could simply thwart visitation at any time by imposing unnecessary discipline.”

At the May hearing, Diane Bjerke testified that she had never interfered with her son’s disciplining of his children, except for one occasion in which Cory had his teenage daughter pinned on the ground and was slapping her face with gloves.

In a motion for order to show cause on July 26, the grandparents’ attorney also said the parents had failed to comply with the judge’s June 20 order for visitation, which guaranteed the elder Bjerkes one weekend a month and five extra days each June, July and August, plus more time on holidays and birthdays.

‘Cause for alarm’

Bjerke and Sterf now face a show-cause hearing Tuesday.

They said in the statement that Jahnke’s order had served as a cause for alarm to other parents whose rights could now be trumped by a grandparents’ desire for visitation.

“Being neither the court nor the grandparents ever suggested we were unfit parents, we figured there wouldn’t be a need for the state to intervene in our right to decide when and with whom our children associate,” they said.

Calls to the elder Bjerkes and their attorney were not returned.

Readers can reach Forum reporter Emily Welker at (701) 241-5541