Summary
holding a party to a custody dispute has the right to cross-examine the author of any report or recommendation on the custody and visitation of a minor child
Summary of this case from In re DoeOpinion
No. 45677.
April 9, 1976.
Dissolution of marriage — custody of children — use of custody evaluation report — right of parties to challenge adverse facts.
Appeal by plaintiff wife from an order of the Carlton County District Court, Patrick D. O'Brien, Judge, denying her motion for a new trial or for amendment of a divorce decree awarding custody of the minor children of the parties to defendant husband. Affirmed.
Thomsen, Nybeck, Zeck, Herbst, Johnson Wilson and Adrian E. Herbst, for appellant.
Weinberg, Litman Kaner and Edward A. Litman, for respondent.
Considered and decided by the court without oral argument.
Plaintiff mother appeals from an order denying her motion for a new trial or amendment of a divorce decree insofar as it granted defendant father custody of their three children. Plaintiff seeks a reversal of the custody award on the ground that the trial court abused its discretion in awarding custody to defendant. Alternatively, she seeks a remand for a hearing at which her counsel can cross-examine the author of the custody evaluation report and introduce additional testimony. We affirm.
It would not serve any useful purpose to summarize the facts. However, we have carefully reviewed the entire record and conclude that the trial court did not abuse its discretion in awarding custody to defendant. Ryg v. Kerkow, 296 Minn. 265, 207 N.W.2d 701 (1973); LaBelle v. LaBelle, 296 Minn. 173, 207 N.W.2d 291 (1973); Minn. St. 518.17.
The rule with respect to custody evaluation reports is that, absent a waiver, an appellant in a custody case is entitled to a new hearing if it appears that the trial court based its custody decision in part upon such a report without first giving the parties an opportunity to cross-examine the author of the report or to otherwise meet or answer adverse facts therein. VanZee v. VanZee, 302 Minn. 371, 226 N.W.2d 865 (1974); Timmons v. Timmons, 298 Minn. 523, 213 N.W.2d 335 (1973); Fisher v. Devins, 294 Minn. 496, 200 N.W.2d 28 (1972). In this case we cannot determine with certainty from the record whether there was a waiver, but it does appear that the trial court did not base its decision on any information contained in the report (which, incidentally, was equally favorable to both parties). In view of this, we do not believe it would serve any useful purpose to grant plaintiff a new hearing. This decision is not intended to alter in any way the responsibility of the trial court in custody cases to provide the parties with an opportunity to read evaluation reports and to cross-examine the author or otherwise meet or answer adverse facts therein.
Affirmed.