In a lawsuit considered rare even among uncommon grandparents’ visitation rights cases, a couple here have won court-ordered time with their grandkids during holidays, birthdays and summer vacation over the objections of the children’s parents, one of whom is their own son.

In a lawsuit considered rare even among uncommon grandparents’ visitation rights cases, a couple here have won court-ordered time with their grandkids during holidays, birthdays and summer vacation over the objections of the children’s parents, one of whom is their own son.

Attorneys from both the Red River Valley and national elder law organizations said the case is rare because the children’s parents are alive and well and parenting together. In most cases of grandparents seeking visitation, death or divorce is involved.

“I work with grandparents every day … I’ve never had a case like this,” said Ron Fatoullah, who has practiced elder law in New York state for the last 37 years. “It’s unheard-of.”

Fargo-based family lawyer Michael Gjesdahl hasn’t heard of this kind of case either, in spite of handling two to five grandparent visitation cases per year over the course of his 30-year practice.

Gjesdahl said the case is unusual, too, in that a judge’s order in the case seems to give one of the grandchildren, a 16-year-old girl, the authority to decide when her visits will occur.

“It’s unusual to let a kid drive the bus,” he said.

“Judges love grandparents … judges are just like people,” Gjesdahl added. They “lean in favor of this” kind of feel-good solution in many cases, he said.

But Gjesdahl said judges still tend to give grandparents less time with their grandkids than they seek, in spite of the urge for a Hallmark ending. Beyond that, the case has other elements he hasn’t seen before – including having the grandparents suing their own child.

Facts of the case

Diane Bjerke and her husband, Robert, sued their son, Cory, and the children’s mother, Naomi Sterf, in Grand Forks County District Court in September of last year, according to court documents filed in the case. The elder Bjerkes sought court-ordered visitation rights with their grandchildren.

A previous mediation attempt to work out visitation had been unsuccessful, and the Bjerke grandparents, with whom their 16-year-old granddaughter had lived for a year and a half while Cory had served time for a drug conviction, had not seen their grandchildren with the voluntary cooperation of their son since 2011, according to a judge’s ruling in the case.

That was the year Cory Bjerke became convinced his parents had turned him in for a drug offense, Judge Lawrence Jahnke wrote.

Jahnke issued an order to Cory Bjerke and Sterf on June 20 to allow their eldest daughter to visit her grandparents “as she wishes, to include overnight visits.”

The order also requires that the grandparents be allowed to spend at least four hours with the 16-year-old girl and the two younger children on the children’s and the grandparents’ birthdays, as well as on Grandparent’s Day, Easter Sunday, five days over the summer, three days over the Christmas holidays and one day over Thanksgiving.

Cory Bjerke and Sterf declined to comment for this story, but released a statement to The Forum of Fargo-Moorhead that said, “The financial and emotional stress from this case has been overwhelming. We strongly feel parents should be able to determine when and with whom their children associate with. The case is still open, we have no further comments.”

The couple filed a motion July 1 claiming the order would interfere with the parent-child relationship.

The motion asked Jahnke to clarify his order, noting that if the 16-year-old becomes upset at routine discipline or over a disagreement with her parents, she would be able to exercise visitation, regardless of her parents’ wishes. The next hearing in the case filed in Grand Forks County District Court is set for Sept. 10.

Bjerke’s parents did not return a phone call seeking comment.

‘Always a sad story’

Family law attorneys say the legal standard in both North Dakota and Minnesota is that grandparent visitation has to be in the children’s best interests and cannot interfere with the child-parent relationship.

All other states have similar standards, often adopted in response to a U.S. Supreme Court opinion in a 2000 case, Troxel v. Granville. In that case, justices struck down a Washington state law that allowed third parties, such as grandchildren, to petition for visitation rights of children over the objections of parents.

That decision led many states to overhaul their laws to come in line with the Supreme Court’s ruling, though individual states’ laws still are by no means uniform, Fatoullah said.

Maureen Holman, a family law attorney with Serkland Law Firm in Fargo, said grandparent visitation cases are most often filed when one parent has died, and the remaining parent has not permitted the dead parent’s parents to see the children.  

In other cases, grandparents have displayed a history of abuse or substance abuse – often a clear reason for parents to keep their kids away from them, Holman said.

She often gets calls from grandparents asking about suing for visitation in the wake of their child’s nasty divorce. But those inquiries rarely materialize into actual case filings, Holman said, as grandparents come to realize that winning the case would mean their court-ordered visitation time would cut into their own adult child’s time with the kids.    

Those are the ordinary causes. But in other cases, Holman said, “I suppose sometimes it’s just spite, as much as anything.”

The North Dakota chapter of AARP, a retiree advocacy group, has not dealt specifically with this case, nor does it have attorneys who specialize in cases like these, said Lyle Halvorson, a spokesman.

It does have recommendations for grandparents who may be looking into court-ordered visitation, including addressing family discords and breaks early and considering family therapy sessions, he said. But the recommendations can come too late for families in which there has been bad blood brewing for many years.

Fatoullah said he’s had success mediating situations in which parents were arbitrarily denying the grandparents time with the grandkids – but only if the relationship was already positive and always with the exercise of a lot of tact on his part, he said.

“There is a lot of guilt on a parent’s part to deny that relationship if the relationship is a healthy one,” he said. “You can say to the parent, ‘Look, this is your issue, not your children’s issue.’ ”  

Gjesdahl said that every case is different in its specifics, and it’s hard to generalize among them.

“What if Mom and Dad are unstable?” he said. “What if Grandma and Grandpa are critical in the child’s life and keep the child functioning?”

No matter what started these families down the road that led to the courthouse, he said, one thing is almost always true.
“It’s almost always a sad story,” Gjesdahl said.