MN Supreme Court divided on whether abuse of a mother is abuse of children

In upholding the constitutionality of Minnesota's law allowing a 50-year order for protection for victims of domestic abuse, the Minnesota Supreme Court was torn today on the question of whether abuse or stalking of a mother constitutes abuse of the children when it comes to deciding whether parenting time should be restricted.

The court has been considering the case of James Bergstrom and Vanessa Rew of Woodbury for more than a year and a half. They were married for 14 years, before they divorced.

Rew sought a series of one-year orders for protection that prohibited Bergstrom from contact with their two children, banned him from entering the home, and required him to stay away from the children's school.

Over the years, he was convicted of felony charges of violating the orders, and served eight months in prison. Among other infractions, he was arrested for stalking Rew in a car with a camera, tapping into her e-mail, and showing up at Rew's church retreat, refusing to leave.

In 2009, Rew sought a 50-year order for protection (OFP), which is allowed under Minnesota law if someone violates an order for protection on two or more occasions, or if someone has has had two or more orders for protection in effect against the same person. A court granted the order even though there'd been no specific findings of domestic abuse.

In 2012, the Minnesota Court of Appeals upheld the 50-year statute, saying it doesn't violate Bergstrom's freedom of speech because "it burdens no more speech than necessary to serve a significant government interest."

In his opinion today, Justice David Stras noted that courts generally look unfavorably on restraining speech before it is made, but he cited a U.S. Supreme Court decision upholding protest-free zones around abortion clinics.

An OFP (order for protection) does not prohibit a person from expressing his or her ideas; rather, it requires a person to express those ideas to people other than those protected by the OFP.

The court also turned aside Bergstrom's contention that a 50-year order for protection is unduly harsh. "Even if an OFP carries a timeframe of up to 50 years, as occurred here," Stras said, "nothing prevents a serial abuser from moving to modify or vacate the terms and conditions of the OFP after 5 years."

But Stras also ruled that the 50-year protection does not extend to the couple's children past the time at which they turn 18. They are now 16 and 14.

There was, however, no evidence that Bergstrom abused his children, Stras said, and the Court of Appeals was mistaken to deny him parenting time with them. He ordered the case back to the district court to reconsider the ban.

That part of today's decision drew a rebuke from Chief Justice Lori Gildea.

"The record shows that Rew alleged that Bergstrom has waged an extended campaign to terrorize his children along with his ex-wife, both by violating orders for protection in the children’s names and by threatening the children’s safety and emotional well-being," Gildea wrote in her dissent.

In Rew’s 2008 OFP affidavit and petition, she alleges that when she was 8 months pregnant with her first son, Bergstrom pushed her down the stairs during an argument. Minnesota law makes clear that an assault against a pregnant woman can also qualify as an assault against her unborn child.

She also said a threat not to return the children after a visitation constitutes a kidnapping threat under Minnesota law.

If, as the court concludes, the district court made sufficient findings for the OFP extension to be constitutional as applied to Rew, then surely those same findings must be sufficient to sustain the much more limited order with respect to the children.

Justice Christopher Dietzen said without the order for protection banning parenting time, Bergstrom could use his children to get to Rew. Bergstrom had hidden cellphones in various locations and pressured the child to use these phones to secretly call him, he noted.

The child also explained that Bergstrom has previously sought contact through inappropriate methods, such as by hiding in the bushes during a backyard sleepover. The child’s therapist reports that, in her view, the child is “very afraid of his Dad,” and she notes that the child would like to see his father "at some point, but not right now."

But Dietzen said he agreed with the Supreme Court's decision to send the case back to the district court, if only to have it issue a definite finding that he had abused the children.

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