Hot Guardianship Bench

Guardian Sets Reasonable Boundaries for Father Spewing Angry Vitriol

Matter of Guardianship of M.H., 965 N.W.2d 874 (N.D. 2021)


Relationships are a key ingredient for a happy life, but not all relationships are healthy or beneficial. This is particularly true for vulnerable individuals who may be at risk of exploitation, abuse, or harassment. One of many balancing acts guardians must perform is in determining whether a relationship is in the best interest of the protected person and, if not, what to do about it.

Many states have been working to modernize guardian-ship laws, providing additional protections and creating a clearer framework for guardians. Although state laws vary (often significantly), historically, it was presumed that a guardian has the right to set limits on visitation or communication; however, the modern trend in state law is to set parameters on the guardian’s role in this area. See, for several examples, Guardianship and the Right to Visitation, Communication, and Interaction: A Legislative Fact Sheet (American Bar Association, May 2018). In some states, such as California, a guardian’s authority to restrict visitation without order of the court is constrained. In other states, including North Dakota, a guardian may restrict visitation when doing so is in the best interests of the person, and interested parties may petition the court for review of this decision. See id.; and see North Dakota Century Code § 30.1-28-12.2.

When making decisions as a guardian, these updated statutes should be read in concert with other resources, including the National Guardianship Association Standards of Practice. Of relevance here, Standard #4 requires guardians to promote social interactions and meaningful relationships consistent with the preferences of the person, unless it will substantially harm the person. A guardian should be aware of the protected person’s friends, family, and social contacts, and the potential benefits and harms which may be presented by contact with these individuals.

It is essential that the guardian keep the person’s needs and best interests at the forefront of this analysis, something that can be particularly difficult when there is a personal history of acrimony between the guardian and the person initiating contact with the protected person, for example, ex-spouses.

In Matter of Guardianship of M.H., 965 N.W.2d 874 (N.D. 2021), the North Dakota Supreme Court considered the issue of when a guardian may restrict or limit contact with a protected person. In this case, the appellant, M.H.’s father, challenged a district court decision denying his petition to remove the current guardian (M.H.’s mother) and appoint himself as guardian, and denying his request to remove contact restrictions placed by the guardian, restricting his ability to contact M.H.

Following multiple incidents of angry outbursts directed at M.H.’s staff which caused stress and anxiety in M.H., the guardian placed phone and visitation restrictions on the father. M.H. testified that she did not want her father coming to her apartment, and the district court determined that her testimony was competent. Based on this evidence, along with other evidence regarding the father’s behavior, the district court found that the restrictions placed on the visitation were in M.H.’s best interests.

The North Dakota Supreme Court determined that the standard of review on appeal for the visitation issue is the clearly erroneous standard, a very deferential standard of review. Applying this standard to the case at hand, the Court came to the conclusion that the district court did not misapply the law, and the record was sufficient to support the conclusion that the contact restrictions were appropriate under the circumstances.

Although not referenced by the Court, importantly, before restricting visitation, the guardian made attempts to structure the contact in a way that would minimize potential harms while still allowing the family contact to continue, and she actively communicated with the protected person to determine her wishes and needs before acting. Such steps ensure that the individual’s needs are met while insulating the guardian should their decisions be challenged in court.

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