## Facts

- Nancy SooHoo and Marilyn Johnson were in a long-term same-sex relationship and lived together while Johnson adopted two children from China.
- SooHoo never adopted the children but co-parented them for years and performed extensive daily caregiving responsibilities, functioning in loco parentis.
- After the couple separated, Johnson substantially restricted SooHoo’s contact with the children, prompting SooHoo to seek court-ordered visitation.
- SooHoo petitioned for visitation under Minn. Stat. § 257C.08, subd. 4, which authorizes visitation for a person with whom a child resided for at least two years if visitation is in the child’s best interests and does not interfere with the custodial parent-child relationship.
- The district court found SooHoo met the co-residence requirement, had strong emotional ties with the children, and that visitation served the children’s best interests without interfering with Johnson’s relationship; it ordered a visitation schedule.
- The district court also ordered Johnson to attend counseling and granted SooHoo’s therapist discretion to decide whether one or both children should attend therapy with SooHoo.
- The court of appeals affirmed the visitation order.
- Johnson appealed to the Minnesota Supreme Court, challenging the statute’s constitutionality, the visitation order, the lack of a separate evidentiary hearing on visitation, and the therapy-related orders.

## Issues

1. Whether Minn. Stat. § 257C.08, subd. 4 is constitutional on its face and as applied to a fit custodial parent.
2. What burden of proof applies to a petition for visitation under § 257C.08, subd. 4.
3. Whether Minn. Stat. § 257C.08, subd. 7 is constitutional where it places on the custodial parent the burden to show visitation would interfere with the parent-child relationship.
4. Whether the district court abused its discretion in the amount and schedule of visitation awarded.
5. Whether the district court erred by awarding visitation without first holding a separate evidentiary hearing specifically on visitation.
6. Whether the district court abused its discretion by ordering Johnson to attend counseling and by delegating to SooHoo’s therapist decision-making authority regarding the children’s therapy attendance.

## Decision

- Affirmed in part and reversed in part.
- Held Minn. Stat. § 257C.08, subd. 4 constitutional on its face and as applied.
- Required clear and convincing evidence to satisfy the statutory requirements for visitation under § 257C.08, subd. 4.
- Held Minn. Stat. § 257C.08, subd. 7 unconstitutional because it impermissibly shifted the burden to the custodial parent, infringing the parent’s fundamental rights.
- Upheld the visitation award and schedule as within the district court’s discretion.
- Held the district court did not err by granting visitation without a separate visitation-only evidentiary hearing where the parties had an adequate opportunity to present evidence.
- Reversed the counseling order and the delegation to SooHoo’s therapist as an abuse of discretion and an improper delegation of judicial authority.

## Legal Principles

- A fit parent has a fundamental liberty interest in the care, custody, and control of a child; third-party visitation orders must be applied in a manner consistent with that right.
- Under Minn. Stat. § 257C.08, subd. 4, a third party seeking visitation must prove by clear and convincing evidence: (a) the statutory residency requirement, (b) that visitation is in the child’s best interests, and (c) that visitation will not interfere with the custodial parent-child relationship.
- A statutory scheme that places on the custodial parent the burden to prove that third-party visitation interferes with the parent-child relationship is unconstitutional.
- Trial courts retain broad discretion over visitation scheduling when supported by findings on best interests and noninterference; appellate review is for abuse of discretion.
- A separate evidentiary hearing solely labeled as “visitation” is not required if the record shows a fair opportunity to present evidence and the findings are supported.
- Orders compelling a fit parent to attend therapy, or delegating to a private therapist authority to decide conditions affecting parent-child arrangements, require adequate evidentiary support and cannot substitute for judicial decision-making.

## Conclusion

The Minnesota Supreme Court upheld a limited third-party visitation statute as consistent with parental due process rights when the petitioner proves the statutory elements by clear and convincing evidence, struck an unconstitutional burden-shifting provision that required the custodial parent to prove interference, affirmed the visitation award, and reversed therapy-related orders as unsupported and an improper delegation of judicial authority.


SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007)