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December 2021


Nice-Petersen v. Nice-Petersen and me

1221-Girl-with-bird-shadow
40 years after a landmark Minnesota Supreme Court decision, the child at the center of the case reflects on its impact

By Nicole Nice

I was 16, one year out of the custody arrangement that marked much of my childhood, when I asked a friend to drive me to the Hennepin County Courthouse after school one day. I wanted to understand what had transpired between my parents for almost 15 years. I wanted to read our family’s history. I asked the records clerk for my parent’s case file; she dropped a pile of papers almost eight inches tall on the reading table. I sat before it feeling overwhelmed and daunted. The clerk informed me that the office closed in 30 minutes. I decided to leave and come back another day when I had more time. I never went back.

I did not know until almost 10 years later, as I was about to start law school, that there was a case decision in those files handed down by the Minnesota Supreme Court. A friend had stumbled upon it on Westlaw. I did not learn until several years after that, from a high school friend who had begun practicing family law in the state, that the case was in fact a significant precedent in Minnesota family law, frequently cited today. With each revelation, though, I still did not give the news much thought. I did not want to. As a child who had been at the heart of over a dozen hearings before Hennepin Family Court by the age of 15, I had learned that self-preservation depended on a determined art of compartmentalization. The trauma of these court battles, and the persistent tension of my childhood, was in the past. I needed to look forward.

Nice-Petersen v. Nice-Petersen (310 N.W.2d 471) was decided in 1981, when I was four. It is a brief, procedural decision in which the Minnesota Supreme Court held that a district court can decide, on the basis of affidavits and without an evidentiary hearing, whether there is sufficient justification for modification of a custody order. Today a “Nice-Petersen hearing” is used to consider whether the petitioner has established a prima facie case by alleging facts that, if true, would provide sufficient grounds for a modification.

It is such a simple decision, and one so ingrained in Minnesota family law today, that it is perhaps natural to discuss it or to prepare for a Nice-Petersen hearing, without fully understanding what this dry, procedural decision meant to me and my mother. My father had been physically abusive to my mother during their marriage, violence that at times threatened my welfare as well. The custody arrangement that had been in place since their divorce gave my mother primary custody and allowed my father visitation only under the supervision of the Department of Court Services. He then moved to modify the custody arrangement to give him joint custody. It was a startling motion given his history, but also a terrifying one for my mother, who was facing the possibility that she would have to negotiate each parental decision with her abuser until I reached adulthood. 

Reviewing the record and affidavits in our case, the district court decided that there was not a sufficient basis to modify the custody arrangement. Following the Supreme Court’s affirmation, my mother did not have to give up primary custody, and I did not have to spend half of my childhood with a threatening parent struggling with mental illness. My mother didn’t have to spend thousands of dollars on an evidentiary hearing at a time when she was a single mother with limited income. Over the next several years, my mother would prevail at numerous other hearings that repeatedly left my visitation schedule unchanged despite my father’s continued motions. These were challenging years; family court hearings peppered my childhood. But the system worked to protect me. At the age of 15, after a violent episode that left me scared to spend more time with my father, I was released from mandated visitation and finally embarked on a life that felt free—mine.

 


This case and my childhood are inseparable, and as such, it has always felt incredibly personal. Even upon learning that the case reached the Minnesota Supreme Court, even after becoming an attorney, my memory of this case was always that it was my (and my mother’s) own painful and private experience. Then last year, a childhood friend who I had not heard from in almost 20 years found me on Facebook and reached out. She knew her note was “random,” she said, but she felt compelled to thank me and my mom for the case law that she was now using to protect her daughter, and to let us know how much she admired our courage in fighting for decisions that were now helping her. 

I re-read her note several times. I could hardly believe it. I slowly opened the mental compartment in which my childhood and this case live and began to put the pieces together. Of course this case was helping others: It was a major family law precedent. Why did that not occur to me until now, at the age of 44? Why did I never realize how many other parents and children were spared pain and financial hardship, because of what we went through? As it turns out, this simple, procedural decision that meant everything to my mom and me meant everything to my friend, too, and presumably to many other parents in the same situation over the past 40 years. Perhaps the pain behind the pages of that decision was worth something after all.

Recently I reached out for the first time to Mary Lauhead, the dogged attorney who represented my mother in these disputes for almost 15 years. Though I never really knew her as a child, we spoke easily as if we shared years of life history because, of course, we had. Mary shared with me her reflections from those years as well as her still-vivid memory of the contentious hearings, and of how the family bar watched our case closely because it seemed to never end. She told me of the number of people who worked hard to protect me, including psychologist Mindy Mitnick (a frequent witness on my behalf) and Family Court Referee Milton G. Dunham (who “freed” me in 1992). She told me how the Supreme Court’s decision in our case has resulted in more stable custody, and less life disruption, for Minnesota kids in the decades since. It was a much better history than I would have found in those courthouse records when I was 16.

As any family law practitioner knows, behind each custody battle, in the best of cases, lies an immense amount of love for a child. But closer to the surface of the most challenging cases is a great deal of pain and anger. In the many years that have passed since Nice-Petersen v. Nice-Petersen was decided, I haven’t wanted to dwell on those court battles, but as I’ve come to understand, only good things have happened since. Though I will never feel gratitude for the childhood trauma I experienced, I see now that there is gratitude to feel for those who fought hard to keep me safe, and gratitude to receive from those the case has helped. After all, it took a “random” note from a childhood friend, and her experience of this case 40 years on, for me to see things differently. What an incredible, healing journey it has been. 


NICOLE NICE is an attorney living in Denver. She would like the Minnesota family law bar to know that  the correct way to pronounce her name, and the case that bears it, is indeed the plain English pronunciation (“have a nice day”). She forgives all the wrong pronunciations (and misspellings of Petersen) that have occurred over the past 40 years.

 

 
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