STATE OF MINNESOTA
IN COURT OF APPEALS
Joyce A. Johnson-Smolak,
n/k/a Joyce A. Johnson, petitioner,
Hennepin County District Court
File No. MF 235341
Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis,
MN 55402 (for respondent)
Nightingale, Nightingale Law
Office, 5775 Wayzata Boulevard,
Suite 700, St.
Louis Park, MN 55416 (for appellant)
and decided by Klaphake,
Presiding Judge, Toussaint,
Chief Judge, and Willis,
S Y L L A B U S
standard for an endangerment-based modification of a custody order involving a
third party is the same as the standard applicable to modification of custody
for a parent. In both circumstances, the
party requesting modification must demonstrate that: (1) there has been a change in circumstances
that makes modification necessary to serve the best interests of the child; (2)
the child’s physical or emotional health is endangered; and (3) the harm likely
to be caused by the change is outweighed by its advantages.
there is a presumption that a parent is entitled to custody unless shown to be
unfit, this presumption is rebutted when the parent stipulated to joint custody
with a third party and when several years have elapsed since the stipulation.
O P I N I O N
Appellant Jared Pahl
Fink, the father of M.R.F., and respondent Joyce A.
Johnson, M.R.F.’s maternal grandmother,
stipulated to joint legal and physical custody of M.R.F. after his mother died
in 1996. In 2003, both parties moved to
modify custody: appellant sought sole
legal and physical custody of M.R.F., while respondent sought sole physical
custody or, in the alternative, sole legal and physical custody of M.R.F. Following an evidentiary hearing, the
district court denied both parties’ motions.
On appeal, appellant argues that the district court abused its
discretion by applying an incorrect standard for modification and by failing to
acknowledge his presumptive right as natural parent to custody of M.R.F.
district court applied the proper standard for custody modification and because
appellant’s presumptive right to custody as parent of M.R.F. has been overcome
by the stipulation between the parties and the lapse of time, we affirm.
Rochelle Johnson when she was still in high school. Shortly thereafter, M.R.F. was born on July
3, 1995. Johnson
died in an automobile accident when M.R.F. was 18 months old. At the time, appellant was sporadically
employed. Within a year after Johnson’s death, appellant and respondent, who is M.R.F.’s
maternal grandmother, entered into a stipulation for joint physical and legal
custody of M.R.F. This stipulation was
confirmed by court order issued December 4, 1997. M.R.F. has lived with respondent since that
appellant enlisted in the Navy, left Minnesota
for basic training, and eventually settled in Virginia,
where he currently lives with his second wife.
Although relations between appellant and respondent were initially
somewhat cordial, tensions developed after appellant’s enlistment and were
heightened over issues of child support and religious training. Appellant, a Mormon, wanted M.R.F. raised in
the Mormon church; respondent, a Roman Catholic, agreed to this, but appellant
did not believe that she was wholeheartedly involving the child in the Mormon
church. A series of confrontations over
support, access, visitation, and religious training resulted in both parties
moving for modification of the custody order.
A custody evaluation of appellant was performed in Virginia
and affirmed that he would be an appropriate custodial parent. A similar evaluation of respondent was
performed in Minnesota;
the evaluator concluded that respondent was an appropriate custodial
parent. Neither evaluator examined both
parties. Both evaluations made clear
that M.R.F. is a happy, well-adjusted child, despite the now-open hostility
between his joint custodians.
After a hearing in July 2004, the district court found
that in order to modify custody, appellant would have to demonstrate that (1)
there had been a change in circumstances since the prior order; (2)
modification would be in M.R.F.’s best interests; (3) the child’s current
environment endangered his physical or emotional health; and (4) that the
harm caused by modification would be outweighed by the advantages of the
change. The district court concluded
that appellant failed to prove that modification would be in M.R.F.’s best
interests, that M.R.F. was endangered in his current environment, or that the
harm caused by modification would be outweighed by its advantages. The district court therefore denied the
parties’ motions for modification and ordered that the joint legal and physical
custody arrangement and the child’s current residence be continued.
moved for amended findings or a new trial based on transcripts of telephone
conversations between the parties.
Appellant claimed that these transcripts showed the open hostility
between the parties and how it affected M.R.F.’s emotional health. The district court denied this motion, and
this appeal followed.
1. Did the
district court abuse its discretion by refusing to modify the joint custody
2. Did the
district court err by failing to acknowledge that the parent is presumed to be
a fit custodian?
district court’s custody modification decisions are reviewed for an abuse of
discretion. Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).
An abuse of discretion occurs when the district court makes findings
unsupported by the evidence or improperly applies the law. Id. Findings are reviewed for clear error; the
record is reviewed in a light most favorable to the findings. Id.
custody order will not be modified unless the court finds that a change of
circumstances has occurred and that modification is necessary to serve the best
interests of the child. Minn. Stat. § 518.18(d)
(2004). When a proposed modification
includes a change in the child’s primary residence, custody may be modified if
the district court finds that the child’s present environment endangers the
child’s physical or emotional health and that the harm caused by the change is
outweighed by the benefit to the child. Minn. Stat. § 518.18(d)(iv). “Endangerment” implies a significant degree
of danger or likely harm to the child’s physical or emotional state. Sharp
v. Bilbro, 614 N.W.2d 260, 263 (Minn. App.
2000), review denied (Minn. Sept. 26, 2000).
court found that the child is not endangered in his present environment, but on
the contrary, is a happy, well-adjusted child.
The court also found that respondent attempted to provide appropriate
religious instruction in accordance with appellant’s wishes and the court
further found that allegations regarding hygiene, clothing, and respondent’s
smoking do not rise to the level of endangerment. These findings are supported by the record
and are not clearly erroneous.
argues that the district court should have applied the standard of Minn. Stat.
§ 518.18(e) (2004), as interpreted in Ayers
v. Ayers, 508 N.W.2d 515, 520 (Minn.
1993),which states that when a joint
custodian seeks permission to move the child’s residence to another state, the
court must analyze the request using the best interests factors of Minn. Stat.
§ 518.17, subd. 1(a) (2004). Had
appellant simply asked for permission to move M.R.F. to Virginia,
this would have been the correct standard.
Appellant, however, sought to not only move the residence of the child,
but also to modify the basic custody arrangement, from joint legal and physical
custody with respondent to sole legal and physical custody with appellant. The district court thus properly applied the
law: it maintained the current custody
arrangement, which specified the child’s primary residence, in the absence of
evidence that the child’s physical or emotional health was endangered.
Presumption of Custody in the Natural Parent
argues that the district court erred as a matter of law by failing to consider
his right as natural parent to custody of M.R.F. The parent is presumed to be a fit and
appropriate custodian for his or her child, unless it is shown that the parent
is unfit, that the parent has abandoned his or her right to custody, or that
there are extraordinary circumstances requiring that the parent be deprived of
custody. In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn.
2002) (citing Wallin v. Wallin, 290 Minn. 261, 264-65, 187
N.W.2d 627, 629-30 (1971)). But “[t]he
principle that the custody of young children is ordinarily best vested in the
[parent] . . . is distinctly subordinate to the controlling principle that the
overriding consideration in custody proceedings is the child’s welfare.” Wallin,
290 Minn. at
265, 187 N.W.2d at 630.
In Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn. 1989), custody of
the child remained in a third party, despite the fact that the mother was not
found to be unfit. The court recognized
that there were “grave and weighty” reasons to continue the custodial
arrangement, when the child had been integrated into the third party’s home
with the initial consent of the mother, and the experts concluded that
returning the child to the mother would be detrimental to the child. Id. This
principle was reaffirmed in N.A.K., 649
N.W.2d at 175, where the supreme court stated that “the cases make clear that
ultimately the welfare of the child is the umbrella under which every aspect of
custody decisions—including the parental presumption—falls.” The
court recognized that the parental presumption can be overcome by
“extraordinary circumstances of a grave and weighty nature.” Id.
district court considered the parental presumption but found extraordinary
circumstances that overcame the presumption: the stipulated agreement between these parties
to share joint legal and physical custody of M.R.F. and the fact that M.R.F.
has lived exclusively with respondent for eight years. These findings are based on the record and
are not clearly erroneous. The district
court’s decision to maintain the custody arrangement was not an abuse of
D E C I S I O N
district court did not abuse its discretion by refusing to modify the current
custody arrangement, when appellant failed to demonstrate that modification
would be in the child’s best interests or that the child was endangered in his