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.

  • Jeff

    If a man physically beats his wife and their children witness it, are they abused, too? I’d say yes because of the trauma that they just witnessed. What if he verbally abuses her? I’d say yes again. In this case, it sounds like the husband isn’t physically beating his wife but he is certainly terrorizing her with his actions, similar to verbal abuse. So I’d say yes, he is abusing his children, too. I’d be terrified of this guy if he was my dad and I’d be afraid that he’d pop out of the bushes at any moment.

    • Jason Smith

      While that one time was very unfortunate and should not have happend, there will now be years of parent alienating their children. Years and years of abuse. That my friend is the ultimate form of child abuse. The problem is courts help to perpetuate this abuse.

    • randywwatkins

      I would say you are nuts. If a woman berated her husband (and many of them do) and the children heard it; would we even be talking about this. No. You must be living in a make believe world where women do no wrong. Our courts, cops, and people in the system DO NOT treat the sexes the same. I am terrified of people like you wondering the streets and having a opinion.

      • Jeff C.

        Where in my comment did I say that if a woman did the same thing to her husband that it would NOT be abuse? My comment states what *I* believe. I am not making any guess as to what the courts, police or anyone in the system says. You don’t need to be terrified of me. (Why are you?) (For the record, I believe that a woman beating her husband is abusing him. I also believe that a woman verbally abusing her husband is abusing him.)

        • randywwatkins

          I am saying that I don’t think you have ever been in family court. Then I’m referring to all the comments you make. There was an article I read on a certain well known lawyer in California that had no idea how biased the courts are against the father. This system is very,very biased against the father. Unless you have lived that experience you will never know. My point to many of unanswered questions is give me my constitutional rights. Open the same doors for men as you would a woman. From the very start that is not what happens. So now the article we were reading was going to make a decision on lies mostly by the mother; so she can get what she wants. What happened to the children? They will be in there late twenties be4 they will realize they were duped by their mother.

  • randywwatkins

    From the very moment a married couple decides to get divorced democratic states put the screws to the father. Unless you are a total idiot you should know that. The children become pawns in a very dangerous game of chess. I have been through that system and I know first hand how blatantly discriminatory it is. In this case the article stated the man was not abusive to the mother. So why does the state want to add fuel to the fire? Would our government act in the same manner if the roles were reversed? That is a big fat no. Do we have a fence around the women’s prison in Shakopee? That’s a big fat no. I wonder why. I even sat down with my state senator on this issue. What has happened to the 14th amendment to the constitution. There is no due process of the law in family court. So you have a one sided female version of what happened. Then the snowball just keeps getting bigger with lies. Let the man see his children. Let the state stay out of it unless the can be fair and they can’t be fair. This country needs to abide to the constitution and let men have the same rights as women.

    • Read the entire decision and then come back and talk about it.

      Pay attention in particular to the multi-step constitutional test that was applied. That will answer your question about the constitution.

      • Jason Smith

        Bob, what randywwatkins is referring to is the lack of multi-step constitutional tests that fathers across the world are up against when it comes to family law. Our first amendment rights (as stated) are being abused as parents in an epidemic like none other in the family law system. It is the burden of each parent to argue for this right thousands of times a day across America. This far too often puts a finical burden upon the family that is not in the best interests of the child. Over 70% of the time child custody is awarded to the mother. 19% to the father and the other percentages are to the state/grandparent/etc. I think this conversation brings up some good points. One of which is the fact that order for protections are common use in family law as a tactic to gain custody. As seen in this case, the children loose. It is clear that parent alienation (an all to common form of child abuse) has taken place. With NO evidence of child abuse in this case, the father cannot even see his children, go to their school, drive by the school, daycare, etc.

        • I understand what he was saying but this isn’t a case of fathers rights per se so it’s inappropriate to steer the discussion that way. Again, I would urge you to read the opinion and specifically point to the constitutional issues you don’t believe have been answered or not specifically addressed.

          Your contention that there was no evidence of abuse ignores the very issue at hand and the one that was in dispute. One reason that Stra cited there being no evidence of abuse in the 50 year OFP is the hearing that granted it didn’t accept evidence of it because the law doesn’t require it.

          For the purposes of the 50 year OFP it only mattered that be violated a one year one that existed.

          Also worth pointing out he didn’t attempt to modify any of this existing one hear OFPs.

          • Jason Smith

            I don’t think you understand how often these OFPs are used in family court against fathers. This is a direct case of parental rights. When an OFP is issued it is the burden of the parent to prove otherwise. This is just a tactic to force settlement as the financial burden is unbearable for that parent along with the lengthily family court proceedings. See “Divorce Corp” and you will understand. This case in particular, is just the end of a very long process parents face in family court. In the end, the children loose. In the end, the children will know and understand the truth, but by that time they have gown up with out a father or mother. It is sad on all levels and begins in family court. The “best interest” of the child is not being met and we are now seeing the affects of that. There is an increase of suicide, teenage pregnancy, depression and a slew of other issues our children face today being raised in a single family household.

          • I actually do get that, and that you don’t care for the current system of OFPs. The history here is pretty well documented in the 53 pages of the opinion. What in particular in this decision do take issue with other than the fact the father didn’t get parental time AFTER he lost it and went to prison?

            You may have a problem, and I assume you do, with the 50-year OFP and in particular the perceived abridgement of First Amendment rights.

            Today’s decision addressed that. What in that explanation of constitutionality do you find legally incorrect?

          • Jason Smith

            Bob, I did not see that he went to jail. Bob, I don’t know if you have children or not, but what if one day your children were systemically taken away from you. You lost your house and all possessions. No one believes it until it happens to them. You are really one false order for protection away from loosing it all. That is all it will take, one phone call from an angry mother to take everything you have away from you. It’s that simple.

            My divorce was nothing like this, however, I had my daughter taken away from me and not allowed joint parenting just because it would have ment no child support for mom. Lucky for me, I get my daughter 43% of the time. Just enough to still pay child support. I am able to be a part of her school, her care and her life.

            It wasn’t until I went through all of this and spent $20,000 in lawyer fees that I realized it wasn’t just me. Then after learning of others stories did I learn that I have it easy. This was not just one case, this was one case of thousands and thousands across the country.

          • I admire your willingness to at least try to contest the OFP. This guy didn’t. At all.

          • Jason Smith

            While this guy may be a bad dude, this same scenario happens across the US every day to amazing parents who are just trying to be a parent. I think that the courts did a great job is kicking it back to the district court, because there was no proof of child abuse. That needs to be the case. Just because parents can no longer get along does not mean the children should suffer with a lack of one parent in their lives. OFPs are issued without evidence all the time. Even when they are found to be false, there is no punishment for the false accuser. Yes, it is law you cannot file a false report, but judges do not implement the punishments for doing so. Violence against women groups will argue that if there is strict punishments for false accusers, than they will not likely report an event. The issue is, domestic violence occurs in women just as much as men, but in todays society men are laughed at for reporting.

            Bob, follow The Fathers’ Rights Movement on Facebook for a month and you will be amazed on what is taking place in family court. Keep in mind 40% of the followers are women. Many are grandmothers and step moms who see what their children and husbands have to endure just to be parents in their child’s lives.

          • randywwatkins

            I have paid above the 30,000 dollar mark for attorney’s fees. At this point it will not go any higher. I gave my son up for adoption I could not afford to battle my ex wife she has a power job and makes a little money. The system run by democrats will change.

          • Jason Smith

            There comes a point where enough is enough. My guess is that he did not attempt to modify, because it is an overwhelmingly financial burden to keep having to go back to court to modify anything. We do not know why he didn’t attempt to modify, but in my experience I have seen fathers so beaten down by the system that they are broke. They then loose their license (lost license due to non payment of child support), loose their job, loose their home and are left homeless due simply to family court. Meanwhile, females are given lawyers by violence against women’s groups. You do not see men and children shelters in MN. You do not see assistance for fathers. Look at programs like WIC. What does WIC stand for?

          • Well, really, he didn’t have to go to modify it because it contained provisions for parental time. He had to 1) participate in therapy for 6 months or “until such time as the
            therapist deems such therapy no longer necessary”; and (2) that seek and receive court approval for modification of the OFP’s parenting-time provisions.”

            The kids had to undergo 3 months of therapy.

            In the ’09 OFP, that time frame for the man was dropped to just 3 months.

            Curiously, there was nothing in the decision today that indicated whether he initiated therapy.

            It may be that’s because he spent most of 2009 in prison for stalking and harassing another woman, according to a Court of Appeals ruling I found. He had cut off the GPS monitoring bracelet too.


          • randywwatkins

            I like what you posted most people have no idea how one sided it is. As a man and a father I want the same rights as women.

    • kevins

      The article says that according to the woman, the man pushed her down a stairs while she was pregnant. Seems abusive to me.

      • randywwatkins

        The woman would claim she saw Elvis Presley if she knew she could get some money out of this.

    • Jeff C.

      There isn’t a fence around the women’s prison in Shakopee because the neighbors and Shakopee leaders, including the mayor in 2006, don’t want it. It isn’t necessary. When I studied the issue in the early 1990s, there were more people (mainly men) trying to “break in” to the prison than inmates trying to escape. The most violent inmates aren’t allowed access outside of a secure building. This is not an example of men being discriminated against.

      • randywwatkins

        Jeffery… I don’t care if they didn’t want it. Can you understand being treated the same under the law? Probably not. Treat men in this country the same as you would a woman. Equal protection clause read and understand it. Stop letting women get whatever they want because they said so.

        • Jeff C.

          Randy – The mayor in 2006 was a man. Male residents also don’t want the fence. This isn’t a case of only letting women get what they want – it is letting the majority of residents, male and female, get what they want. And if you are suggesting that the female PRISONERS are getting what they want, I can assure you that they have no say in the matter. The prison leaders are going to do what they feel is best for the prison, not the prisoners, even if the prisoners are female.

  • Charlie Hurd

    Key words from the story: “A court granted the order even though there’d been no specific findings of domestic abuse.” So all this is based on her version of events?

    • No. The law for the 50 year protection doesn’t require a specific finding of domestic abuse. It requires the two elements specified: Two or more times violating an OFP and two or more times having an OFP against you.

      There was no finding of domestic abuse because because finding domestic abuse wasn’t required.

      In the three times he violated the OFP, he pleaded guilty to the charges each time.

      But the Stras decision to send the case back to district court on the parenting issue was contained in a decision that wasn’t about the merits of the original OFPs.

      • S

        But what were the grounds for the original OFPs? Was there evidence to support the allegations for those?

        • randywwatkins

          Probably none; that’s how the game is played.

    • randywwatkins

      Yes they are. All the way to the state supreme court. Because a woman said so it must be so. That’s how family court works in democratic states. It’s discriminatory at every bend and turn and the democrats don’t care. They just hate men and father’s. I had an ofp on me because she said so. I was living six hundred miles away from her. It’s all about what the mother says.

  • S

    See above link for back story of events that led tonfalse accusations resulting in OFP.

    On July 6, 2010 Dustin was charged with Gross Misdemeanor Harassment/Stalking. He was told to serve a co parenting order on his ex by the court. A custody matter had been filed in Stearns County District Court on April 30, 2010 after his son had been taken three days earlier from his home by the child’s mother with the promise that he could pick him up the next morning.

    There was no OFP in place at the time of his arrest and no history or allegations of domestic abuse. On July 6, 2010 a Harassment Restraining Order and Domestic Abuse No Contact Order were filed. Their child was listed on the DANCO as well.

    At trial, he was entered a verdict of Not Guilty for the one and only charge of Gross Misdemeanor Harassment/Stalking. After minutes of hugs and thanking the jury the jury foreman stood up and stated that there was a mistake. The time was nearing midnight. The judge then allowed the foreman back into the jury room alone. He came out with a new verdict sheet with a guilty verdict dated the next days date. The judge then stated that the court was in a bit of a predicament and allowed the foreman back a third time and he returned with a guilty verdict with that days date.

    Dustin was convicted of the charge and a DANCO was extended for an additional two years. He didn’t see his son because of the charge alone between April 27, 2010 and March 5, 2011. He saw him in supervised visitation.

    This is only a miniscule portion of what these false allegations can do to devistate a father-child relationdhip by the ease of accusations. Most recently evidence has surfaced to confirm this was a set up.

    • But, again, that has nothing to do with this case or decision today. There’s no indication the gentleman contested the OFPs as being false.

      • Josh

        Bob everyday ofp’s are granted when nothing has happened more than someone saying “I’m scared” . No evidence is necessary it just happens. This ruling could possibly effect many good dads who have false claims against them. You can’t allow one case to be the book for every other case. This man may have issues? May, because again you said they needed no evidence for an ofp… I see nothing here but her opinion. A man should be allowed to be a father if there’s no proof of dv which in this case there isn’t.

        • Again, that might be true but isn’t an issue that has been raised in this case.

          • Josh

            I hear what your saying Bob. But using an ofp for parental alienation is and everything in this case points directly to that being the issue. Bob I hope to have a serious conversation with you about this. I would love to talk to mpr about our movement in mn, fighting for Fathers’ Rights. If you’re interested I can give you my email.

  • rob

    my question..were all these ofps and no contact orders legit..or was this woman using them as a tool to hurt her childrens father for some sleight? if dad is beating the children, or harming the children..that’s child abuse. would it not be child abuse if the mother used the courts and no contact orders to harass the father and prevent him from seeing his children??

    • S

      This abuse is called Parental Alienation and it needs to be seen for what it is. Child abuse by alienation.

    • The question can be answered by reading the opinion. Justice Gildea spelled out her assessment of his actions. So did Justice Dietzen.

      In particular there is the question of whether grabbing by the hair and throwing a woman down the stairs is child abuse.

      As noted above, he’s had several women file OFPs against him. And he doesn’t seem to contest them.

      There might be better poster boy for unfair OFPs.

      • Josh

        There might be however we don’t know cause there’s no evidence needed for ofps. Its possible he’s a perfect example of why evidence is needed. Maybe he chose bad partners. Chances are he’s bad but we’ll never know since there’s no evidence to prove otherwise.

    • randywwatkins

      The mother’s lawyer usually has the mom make up charges that she is scared. Once that’s in the system you will be fighting an uphill battle forever.

  • randywwatkins

    Once again I want to state it’s about equality and without due process of the law you will never have fairness. The attorneys know how to play this. Some statements that I have been reading have been less than intelligent. The system is set up for mommy not the father. Maybe some of you should read Dr. Stephen Baskerville’s book: Taken into Custody. Some of the articles he states would blow your mind. How about crime does pay; read about a 34 yr old woman raping a 15 year-old boy (you can’t have sex with a child). This woman gets pregnant and then the state sues for child support and wins. Go educate yourself and find out how the democrats have twisted everything for the mother’s. All the while women go to college become doctors,lawyers,engineers and anything else they want. Then if your a stay at home father they will still put the screws to you. The state will not open the same doors for the father that they do the mother. The vast majority of custody evaluators are women. This motion going be4 the state supreme court is bogus. Equality for men just as you would a woman. From start to finish and that will never happen.

    • Chris Hatch


      “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.”


      “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.”

      Instead of taking over the comments for your personal vendetta, why don’t you comment on this specific case. There was a OFP against a man, and he violated it repeatedly. The victim used a law on the books to get a very long OFP, and the constitutionality of that law is all that was in question.

      I also find your comments about women getting ‘everything they want’ from a ‘democratic’ state both sexist and misguided. My wife had an OFP that took six months to get because of her ex’s lawyer’s shenanigans and delays. Then it was repeatedly violated, including breaking into her parents house, and an attempt to kidnap her in public.

      I also know several other women who were also physically abused that have struggled to get OFPs so I know they don’t hand them out like Halloween candy.

      Does the system lean in favor of women in custody battles when all things are equal? Yes, Yes it does, and that is unfortunate, but the deck is also stacked against women in so many ways too.

      • randywwatkins

        I have been through the system and know first hand what it does to people. They do hand those OFPs out like candy. The deck is not stacked against women at all. Once you experience that you won’t make those comments. There is a story about Gary Dotson though it doesn’t have anything to with this case he was unjustly changed and convicted of a crime he didn’t do. Then even after he gets out of prison he was to messed up to function in society. When people are treated unfairly like in child custody cases they want a sense of justice. Until our society stops babying women we will have this problem. So buddy don’t tell me about my personal case. You have never been through something like this. You will know right from the start that if your a man your the wrong sex.

        • Chris Hatch

          I have a hard time taking anything you say seriously since according to you all women are schemers who just want custody of children and their men’s money.

          That is about as misogynist as it gets. end of story.

          Are there women who abuse the system? sure. Are there men who abuse the system? yes.

          Ultimately this was about the constitutionality of one law, and whether it could be expanded to cover not only the victim but also the children.

          • Jason Smith

            Chris, you have no idea what you are even talking about. Over 70% of custody is awarded to the mother. That is fact. When a couple is married with children and the father looses a job, they both have to deal with that and do what needs to he done. The second they are divorced and mom has custody, if father looses job or is forced to take a job for less pay he is required to pay child support based on “potential” income. He gets behind on child support payments, he looses his license, he looses the job he had because he cannot get to work, he becomes homeless. He gets back on his feet, but still owes arrears.

            An OFP is a common tactic by women in divorce. That was stated in this argument to the state. They are handed out as simply as someone saying “he scares me”. Are there amicable divorces, yes. Are more women than men filing for divorce, yes. Is it a financial gain for women, yes. Does it happen all the time, no. However, it happens more than you can possibly imagine.

            Before you comment on something you know nothing about, follow the Fathers’ Rights Movement on Facebook. I dare you to sit there and read the thousands of stories of good fathers who have had their children ripped from their lives by angry moms and a one sided court system. You won’t though. Then one day you or your son will go through the hell of divorce and child custody and you remember back to this and wish you had done more.

          • Chris Hatch

            should we discuss the thousands of women AND CHILDREN who have been killed by abusive husbands/boyfriends who ignored OFPs or the women couldn’t get an OFP? It cuts both ways.

            Oh and just to be clear, I spent some time reading one of the blogs linked above and the FB page you mentioned. There are some sad, heartbreaking stories for sure, but what I take issue with is the blanket you, Randy, Josh, and S have thrown over all women in your comments.

            It shouldn’t be about men vs. women. it should be about a system that needs reform for everyone.

            As I have noted multiple times, this case was about the constitutionality of a single law. not a referendum on the entire system good or bad.

            In this case, it is clear the system worked and this law is constitutional. maybe in others it didn’t, but those weren’t the items up for debate here.

            But given the 50 year OFP was not extended to the children once they are of legal age, and that Stras sent the parenting time ban back to the Court of Appeals to be reconsidered due to lack of evidence of child abuse, that feels like a small victory for your cause doesn’t it? To me that seem to say that the Supreme Court of MN views abuse of parents and children separately.

          • Jason Smith

            Funny you say that. From what I read S. is a woman dealing with this stuff as a step-mom. Over 40% of the followers on Fathers’ Rights Movement are women. So this is NOT a men vs women. Its good parents vs the corrupt system and corrupt abusers of that system.

            The statistics show that more mothers are abusive to the children then men. This not a violence against women arguement. This is a violence against people argument. However, who is the major opponent to joint parenting….violence against women groups.

            The fact is women are given custody over men. 70/20. No, its not in all cases, but is so one sided it is now and has been an epidemic. So much so that over 40% of the followers of a Fathers’ Rights Movement page are women.

            It needs to change. It has to change! For our children. Not for me, not for or anyone else on here, but for our future.