IN COURT OF APPEALS
In re the Custody of the Child of:
Ottertail County District Court
File No. F2-03-776
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.
2. A recognition of parentage can be vacated within one year after its execution or within six months after obtaining genetic test results indicating that the man who executed the recognition is not the father of the child; an action to vacate must be based on fraud, duress, or material mistake of fact.
O P I N I O N
The district court adjudicated respondent as the father of the parties’ child and awarded him sole physical custody. On appeal, the mother argues: (1) the genetic testing showing that respondent was not the father of the child rebuts any presumption raised by the parties’ signing of a recognition of parentage; (2) the record does not support the court’s findings on the best interests factors; and (3) the court committed reversible error in denying her motion for new trial, when the test results were not known until after trial.
While we agree that the district court erred in ordering the genetic testing, we conclude that such error was harmless. Because (1) appellant failed to timely move to vacate the recognition of parentage; (2) the record supports the court’s findings regarding the best interests factors; and (3) no errors occurred during trial that unreasonably prejudiced appellant, we affirm.
Respondent has been very involved in J.J.W.’s life since his
birth. For the first two years, the
parties agreed that instead of hiring a babysitter, respondent would care for
J.J.W. Respondent has lived his entire
life on his parent’s farm in
During the parties’ relationship and since J.J.W.’s
birth, appellant has lived at six different locations; been employed by eight
different companies, primarily in part-time positions; and has had three sexual
relationships, including the one with respondent. At the time of the district court’s decision,
appellant was married and living in a two-bedroom mobile home in Little Falls,
One of appellant’s sexual partners,
In July 2002, appellant petitioned for an order for protection (OFP) against respondent. Pursuant to the parties’ stipulation, the OFP, which contained no factual findings that respondent committed any acts of domestic abuse or assault on appellant, was entered by the district court and ordered respondent to have limited contact with appellant. During the OFP proceedings, appellant admitted that respondent was the father of J.J.W. As part of the OFP proceedings and pursuant to the stipulation, the court awarded sole physical and legal custody of J.J.W. to appellant subject to respondent’s right of visitation. In fact, the parties continued to equally share in the actual physical custody, parenting, and caretaking of the child from the entry of the OFP to the time of trial in this matter.
In September 2002, respondent filed a petition to establish custody and visitation pursuant to Minn. Stat. §§ 257.75, subd. 3(1); 257.541, subd. 3; and 518.156, subd. 1 (2002). Appellant filed an answer admitting that respondent is the father of J.J.W. and requesting that the court order “genetic testing to establish paternity.” The district court granted the request and ordered testing.
On June 12, 2003, the child support magistrate for
Prior to trial on the custody issues, the district court appointed a guardian ad litem to represent the best interests of J.J.W. The guardian ad litem made an independent investigation, which included personal visits with the parties, and filed a written report. She recommended that the parties share joint legal custody and that respondent be awarded sole physical custody of J.J.W., with liberal visitation granted to appellant.
The district court held a custody trial on March 2, 2004. Although the court and the parties did not receive the test results until May 14, 2004, the court considered the results as part of its judgment. Ultimately, the results excluded respondent as the biological father of J.J.W. The court nevertheless awarded respondent sole physical custody of J.J.W., with liberal visitation to appellant and joint legal custody to both parties. Appellant filed a posttrial motion for amended findings, conclusions, and order, or, alternatively, a new trial. The court granted various portions of the motion for amended findings, but denied the motions for amended conclusions of law and order, and for a new trial. This appeal followed.
1. Did the district court err when it declared the existence of a parent and child relationship?
2. Did the district court abuse its discretion when it awarded respondent sole physical custody?
3. Did the district court abuse its discretion when it denied appellant’s motion for a new trial?
An appellate court’s review of
custody determinations is limited to determining whether the district court
abused its discretion by making findings unsupported by the
evidence or by improperly applying the law. Silbaugh
v. Silbaugh, 543 N.W.2d 639, 641 (
Appellant argues that the district court erred by failing to declare the nonexistence of the father-child relationship based on the genetic test results, which excluded respondent as the child’s biological father. In her answer to respondent’s petition, appellant admitted that “[respondent] and [appellant] are the parents of [J.J.W.]” and that they “signed a Recognition of Parentage on January 19, 2000.” She also requested genetic testing “to establish paternity.”
When the mother
and father of a child sign a recognition of parentage (ROP), they state and
acknowledge under oath that they are the biological parents of the child and
wish to be recognized as such.
Here, the district court ordered genetic testing pursuant to Minn. Stat. § 257.62, subd. 1(a) (2004), which states:
The court . . . may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood or genetic tests. A mother or alleged father requesting the tests shall file with the court an affidavit either alleging or denying paternity and setting forth facts that establish the reasonable possibility that there was, or was not, the requisite sexual contact between the parties.
(Emphasis added.) However,
appellant did not provide the requisite affidavit denying paternity. See
Witso v. Overby, 627
N.W.2d 63, 69 (
conclude that, contrary to the district court’s analysis, this case does not
involve a presumption of paternity. The
district court indicated that “Minn. Stat. § 257.55, subd. 1(e) provides
that a man is presumed to be the biological father of a child if ‘he and the
child’s biological mother acknowledge the paternity of the child in a writing
signed by both of them under section 257.34 and filed with the state registrar
of vital statistics.’” Section 257.34,
however, involves a declaration of parentage (DOP), which declares and acknowledges
under oath that the signatories are the biological parents of the child.
Rather, this case
involves the execution of an ROP with no competing presumptions of
paternity. In order to overcome the
force and effect of an ROP under these circumstances, a party must bring an action
to vacate “within one year of the execution of the recognition or within six
months after the person bringing the action obtains the results of blood or
genetic tests that indicate that the man who executed the recognition is not
the father of the child.”
Here, appellant has failed to meet these requirements. She has not brought an action to vacate the ROP within one year after its execution or by November 2004, which is six months after May 2004, the date that she obtained the results of the genetic tests. Nor has she alleged vacation of the ROP is necessary due to fraud, duress, or material mistake of fact. We therefore conclude that the district court did not err when it declared the existence of a parent and child relationship between respondent and J.J.W.
Even if we were to construe the proceedings here as a timely request to vacate the ROP on the basis of newly discovered evidence, we would still affirm the district court’s decision. The district court also noted that “because no other man is presumed to be the child’s father, [respondent’s] presumption of paternity under [section 257.55, subd. 1(d)] is conclusive.” See Minn. Stat. § 257.55, subd. 1(d) (2004) (stating man is presumed biological father if “he receives child into his home and openly holds out the child as his biological child”). We therefore affirm the district court’s declaration of a parent and child relationship between respondent and J.J.W.
Once paternity has
been recognized through an ROP, the father may petition for rights of custody
or parenting time in an independent action under Minn. Stat. § 518.156 (2004). See Minn.
Stat. § 257.541, subd. 3 (2004). “The
proceeding must be treated as an initial determination of custody under section
that the record does not support the court’s findings on the best interests
factors. She specifically argues that: (1) she is the primary caretaker; (2) the
court overlooked J.J.W.’s interactions and relationship with
The “primary caretaker”
is “the person who provides the child with daily nurturance, care and
support.” Pikula, 374 N.W.2d at 711. The court found
that both parties have been intimately involved in raising J.J.W. since
birth. Both have prepared meals,
provided baths and medical care, and attended to him at bedtime and in the morning
on an equal basis. The court stated that
the facts do not support a preference for primary caretaker in either
party. When the facts demonstrate that both parents
share responsibility for and performance of child care in an entirely equal
way, then no preference arises.
The court noted
that J.J.W. is emotionally bonded and assimilated into both families and has “a
particularly close relationship with his older half-sister, [K.C.].” The court does not make any particular
findings regarding S.A, except for the fact that he is J.J.W.’s
stepbrother. The record is replete with
reference to J.J.W’s close relationship with K.C., but contains less
information regarding his relationship with
With regard to J.J.W.’s adjustment to living with respondent, the court stated that “[J.J.W.] appears to be slightly better adjusted to living at [respondent’s] home (farm) near Hewitt, than living with [appellant] in her new home with [Angevine].” The court noted in another factor that J.J.W. “becomes upset when his custody is transferred” from respondent to appellant. The court also noted that respondent has a more stable home, having lived on the family farm his entire life, whereas appellant has moved to six locations in the past five years; has had three romantic partners, one of whom physically abused appellant in J.J.W.’s presence; and J.J.W. currently lives in a two-bedroom mobile home with his mother and stepfather, S.A., K.C., and a baby due in July 2004. The record supports these findings.
A district court
“may not use one factor to the exclusion
of all others.” Minn. Stat. § 518.17,
subd 1(a) (2004). The law “leaves scant
if any room for an appellate court to question the [district] court’s balancing
of best-interests considerations.” Vangness v. Vangness, 607 N.W.2d 468,
A district court’s
decision to deny a new trial motion is within its sound discretion and will not
be disturbed on appeal absent a clear abuse of that discretion. Myers
v. Hearth Techs., Inc., 621 N.W.2d 787, 790 (
Appellant argues that newly discovered evidence, the genetic test results, was not available until after the trial and the parties were not “allowed to address the [e]ffect of the results” to the court. She therefore asserts that a new trial should be granted or that the matter be remanded for the taking of additional evidence relating to the test results.
At the conclusion of the trial, the attorneys and the court discussed the receipt of the test results. The court allowed the parties to submit their final arguments and proposed findings seven days after the receipt of the test results so they could address the results in their submissions, to which appellant’s counsel agreed. Appellant made no request to leave the record open.
In appellant’s motion for a new
trial, she did not specify any ground for which the court should grant a new trial. She stated that if the court does not grant
her request for amended findings, conclusion, and order, “it would be the
request of [appellant] that the Court order a new trial in light of the genetic
test results which were received following hearing of this matter on March 2,
2004.” Nothing else is stated regarding
a new trial. The district court noted in
its memorandum regarding the motion for a new trial that appellant’s motion
“does not set forth the ‘grounds’ for the motion under Rule 59.01. Therefore, the motion for a new trial must be
denied on that basis.” See Waldner v.
The court did address the test results in its conclusions and memorandum. Based on the court’s analysis, the results did not affect its determination because there was no other man claiming to be J.J.W.’s father. Further, even though the court erred in ordering the tests, any error based on newly discovered evidence relating to the test results would be harmless.
D E C I S I O N
Because the recognition of parentage was never properly vacated, it continues to have the force and effect of a judgment or order that respondent is the adjudicated father. While the district court erred in ordering the genetic tests because appellant never filed the required affidavit, such error was harmless because no other man is presumed to be J.J.W.’s father. The district court’s findings regarding the application of the best interests factors support the court’s award of sole physical custody to respondent. Because the district court addressed the genetic tests in its conclusions and order, and because no errors occurred at trial that unreasonably prejudiced appellant, the court did not err in denying appellant’s motion for a new trial.