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Gjertsen v. Haar

Supreme Court of Wyoming

April 14, 2015

HEIDI GJERTSEN, Appellant (Defendant),
v.
HERMAN TER HAAR, Appellee (Plaintiff)

Page 1118

Appeal from the District Court of Sheridan County. The Honorable John G. Fenn, Judge.

For Appellant: Amanda K. Roberts, Lonabaugh & Riggs, LLP, Sheridan, Wyoming.

For Appellee: Rene Botten, Botten Law Office, Sheridan, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

OPINION

Page 1119

KITE, Justice.

[¶1] Pursuant to a California court order, Herman Ter Haar (Father) has sole legal and physical custody of the parties' child (the child), subject to limited visitation by Heidi Gjertsen (Mother). Mother appeals from the district court's order denying her petition for modification of the California order pertaining to custody, care and visitation with the child. We conclude the district court erred by failing to give full faith and credit to the terms of the California order which specifically allowed a change in the terms of visitation when it would be in child's best interests, but it correctly concluded there was no material change in circumstances to justify a change in custody. Consequently, we reverse and remand in part and affirm in part.

ISSUES

[¶2] Mother presents the following issues on appeal, which we rephrase:

1. Did the district court err by failing to recognize that the foreign custody order allowed the visitation terms to be altered based on the best interests of the child without a showing of a material change in circumstances?

2. Did the district court err by finding no material change in circumstances to justify a change in custody?

Father presents a single issue:

1. Did the district court abuse its discretion when it denied Mother's petition to modify child custody, support, visitation and bond requirement by finding that she had failed to demonstrate a material and substantial change of circumstances as required by Wyoming law?

FACTS

[¶3] This case presents a unique set of facts and course of proceedings. Neither Father nor Mother is a United States citizen although they both have permanent residence (green card) status. One child was born as issue of their marriage in 2006. The parties were divorced by the district court in 2009; however, the issues of child custody, visitation and support were not addressed by the Wyoming court because California was the child's home state at that time. Prior to the California court's determination of child custody, etc., Mother removed the child from the United States to her native country, Norway, without Father's consent and in violation

Page 1120

of a court order. Father proceeded under the Hague Convention on the Civil Aspects of International Child Abduction[1] to have the child returned to the United States and, after several months, he was successful.

[¶4] With the child back in the United States, the California court held a number of hearings on the outstanding issues, and the parties were eventually able to reach an agreement regarding custody, visitation and child support. The stipulated judgment stated that Father and the child had relocated to Sheridan, Wyoming and recognized that Mother had plans to move there, as well. Father also married Carmela Ter Haar (Stepmother) and adopted her son (Stepbrother). The California order specifically recognized that, given the child would be living in Wyoming with Father, Wyoming would be her home state commencing September 1, 2010.

[¶5] The California order stated in relevant part:

5. Whereas, [Father] is relocating to Sheridan, Wyoming, and on February 19, 2010, the Court granted his request that the minor child be permitted to move with him;
6. Whereas, [Father] relocated to Wyoming on or about March 29, 2010, with [the child];
. . . .
8. Whereas, [Mother] intends to relocate to Sheridan, Wyoming;
. . . .
11. Child Custody. [Father] is awarded sole legal and physical custody of the minor child . . . . The parties stipulate that this order is in the best interests of [the child]. The parties stipulate that this is a final and permanent determination of custody, meeting the requirements of Montenegro v. Diaz (2001) 26 Cal.4th 249, 109 Cal.Rptr.2d 575, 27 P.3d 289. . . . See also paragraph 27 herein.
12. Visitation Schedule. The minor child shall reside with [Father] at all times not set out below:
. . . .
b. It is anticipated that [Mother] will move to Wyoming before September 1, 2010. Therefore commencing on September 1, 2010 or the first day of the month following [Mother's] relocation to Wyoming, whichever is sooner, the parties stipulate and the Court orders the following visitation schedule:
c. [Mother] shall have visitation with [the child] on alternating weekends for the time periods setout herein below; in the event the parties are unable to determine an alternating weekend schedule, the schedule shall be determined by providing [Mother] all even-numbered weekends during a calendar year of 52 weeks, for the following time periods:
i. Saturday: from 10 a.m. to 4:00 p.m.
ii. Sunday from 10 a.m. to 4:00 p.m.
. . . .
d. Commencing on September 1, 2010, [Mother] shall have visitation with [the child] on every Wednesday evening from 5:30 p.m. to 7:30 p.m.
e. In the event that a visitation is missed due to travel, including consecutive weeks of vacation travel, or other obligations, it will be " made up" at the earliest mutually agreeable available date.
f. [Holiday visitation set out].
g. Supervised Visitation. Until [Mother] provides $50,000 in cash as security in the event of a re-abduction of [the child], . . . [Mother's] custodial time shall be supervised by a mutually agreed upon nonprofessional provider. . . .
h. Travel. [Mother] must have written permission from [Father] or a court order to take [the child] out of the state of Wyoming. [Mother] must have a court order to ...

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