This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).






In Re the Marriage of:

Brin L. Nicholson, petitioner,






Jeffrey M. Nicholson,





Filed February 13, 2001


Toussaint, Chief Judge


Scott County District Court

†File No. 199813361



John Garrett Westrick, Westrick & McDowall-Nix, PLLP, 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for respondent)


Carla C. Kjellberg, 333 West Parkdale Plaza, 1660 South Highway 100, St. Louis Park, MN 55416-1533† (for appellant)



††††††††††† Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Holtan, Judge.*


U N P U B L I S H E D† O P I N I O N


TOUSSAINT, Chief Judge

††††††††††† Appealing from an initial award of custody, appellant-father argues that the district court abused its discretion when it awarded permanent sole physical custody of the partiesí child to respondent-mother.† Because the district court failed to draw a nexus between its findings of fact and conclusions of law, we remand.


††††††††††† I.N., the only child of the parties to this appeal, was born on December 21, 1993.† In 1998, the parties sought a divorce.† Based on a stipulation of the parties, respondent-mother was awarded temporary sole physical custody of the minor child.† Appellant-father was granted visitation.††

After a guardian ad litem was appointed, a custody evaluation was completed. After a hearing, the mother was awarded temporary sole physical custody of I.N. in 1999.† In making its findings on the best interests of the child, the district court found that ďif [the motherís] hostility towards the [father] and her interference with the father-son relationship continues, the minor child will be negatively affected.Ē† As a result, the district court re-appointed the guardian as litem for another four months for the purpose of making a written report, informing the court as to whether respondentís behavior toward appellant improved during the four months after the dissolution, and whether or not the pattern of conflict between the parties had begun to subside.

††††††††††† In February 2000, the guardian ad litem completed her supplemental report.† Without an evidentiary hearing, the district court made detailed findings on the issue of custody and awarded respondent permanent sole physical custody of I.N.

††††††††††† The following are the relevant May 1999 district court findings related to custody:

1.                  Wishes of the childís parents as to custody.† The parties agree that it is in the childís best interests to share joint legal custody of the child.† However, both parties wish to be awarded the sole physical custody of the child. *** [Father] expressed to the Court that [mother] has demonstrated excessive hostility to his parental role and he believes that if she was granted sole physical custody that hostility would continue and damage the relationship between himself and his child to the detriment of the minor child.† The guardian substantiated the [fatherís] concern ***.


2.                  Reasonable preference of the child.† The minor child is five years old. The guardian ad litem has found and the court also finds that the minor child of the parties is too young to state a preference.


3.                  Childís primary caretaker.† The court finds that the [mother] has been and continues to be the primary caregiver for the minor child. *** Further, the [mother] testified that she maintained all of the responsibility with regard to the parenting decisions for [I.N.].† The Court finds that this statement has some basis in fact.† However, it was not a result of [father] abdicating his responsibility but was a result of [motherís] ongoing criticism of [fatherís] role as a parent.† [Fatherís] allegation that [mother] would undermine his parenting role and belittle and criticize him in front of [I.N.] was supported by the testimony of numerous witnesses.

After the parties separated, [father] began to take a more active role in the life of the minor child.† However, [father] testified that he has never had to care for the minor child on his own for any longer period of time than a weekend.


4.                  Intimacy of relationship between each parent and the child.† Both parties have a significant relationship with the minor child.† Due to her role as the primary caretaker, [mother] has developed a more emotional bond with the minor child.† By comparison, [fatherís] relationship with the minor child, although improving, is not as intimate as the relationship that exists between the [mother] and the minor child.† [Father] himself admitted that the minor child is dependent upon the [mother].

[The court found unfounded, the motherís allegations that father] paid little or no attention to the minor child prior to the separation of the parties.

Both parties have a significant emotional bond with the minor child.




5.                  Childís adjustment to home, school, and community.† *** The minor child is well-adjusted in his current environment with [mother]. *** [Father] currently lives with his 78-year-old mother.† Both [father] and his mother testified to the fact that [fatherís] mother does almost all of the cleaning, cooking and related tasks and assists [father] in parenting the minor child.† The minor child has also adjusted to the environment at [fatherís] current home and to the rules and limits that are placed on him in that environment.


6.                  Length of time the child had lived in a stable, satisfactory environment and the desirability of maintaining continuity.† The minor child has spent his entire life in a stable, satisfactory environment where [mother] operates as the primary caretaker.† This environment has not been free of problems.† [Mother] is unable or unwilling to set appropriate boundaries between herself and the minor child, which is evidenced by the fact that [mother] involves the child in parental disagreements in an inappropriate manner and uses a parenting style that seems to allow the child to parent himself in many ways.† [Motherís] inability to set appropriate limits is specifically troubling due to her apparent refusal to entertain any opinion which differs from her own when suggested by the [father] or other appropriate individuals.

Nevertheless, the Court finds that it is desirable to maintain the continuity of having [mother] as the primary caretaker.† [T]he minor child has reacted well to the turmoil associated with the dissolution of marriage, despite the fact that [mother] has repeatedly involved the child in marital conflict.† Testimony showed that [mother] is available for the child physically and emotionally, and that she spends a lot of time interacting with the child in a nurturing way.† It is important that the minor child be allowed to maintain the stability provided by the primary relationship, which he has with the [mother]. However, it is also important that the child be allowed to continue to develop and improve the relationship that is being established between he and [father].


††††††††††† †††† ****


7.                  Capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the childís culture and religion or creed, if any.† [T]he [mother] is ďwarm, spontaneous, and emotionally available to [I.N.],Ē while [father] is not comfortable expressing his feelings of affection openly or being playful with [I.N.].† However, *** [father] can learn to be more openly affectionate and playful.† Both parties have the capacity and disposition to give the minor child love, affection, and guidance and to continue educating and raising the child in the childís culture and religion or creed.† Both parties are concerned about the best interests of their child.

Although [mother] has accused [father] of being abusive, the guardian concluded that the [mother] inappropriately labels the [fatherís] parenting behavior as abuse when it is more accurately described as the [fatherís] attempt to set appropriate boundaries with the child. *** Except for [mother], all the witnesses who knew him described [father] as a gentle person who did not lose control and there has been no corroboration that [father] has ever posed a physical danger to [mother] or the minor child.†


†††††††††††††† ****


8.                  Ability of parents to cooperate in the rearing of their [child].† The [mother] and [father] have been unable to successfully cooperate on matters involving the child during the pending dissolution.† For example, there has been a substantial amount of friction between the parties in implementing visitation.† Petitioner has also failed to consult [father] in medical decisions affecting the child.† [Mother] admits that some of her behavior was inappropriate, and she explains it as a temporary, emotional response to the breakup of the marriage. †[Mother] further testified that the level of hostility between herself and the [father] has decreased substantially since the first few weeks following the separation.† The Court finds that this has not been the case.† [T]he Court finds that [mother] remains hostile and inflexible towards [father], exhibits her hostility in a less vocal manner, and will not listen to the [fatherís] statements regarding the minor child.† The court is concerned that [mother] does not recognize the need to eliminate this hostility, and that if this behavior does not change, [motherís] attitude will result in harm to the minor child.†


9.                  Methods for resolving disputes regarding any major decision concerning the life of the child, and the parentsí willingness to use those methods.† [B]oth parents have cooperated with [the guardian] when issues have come up regarding visitation.† It would seem that the parties might be able to work together through the assistance of a neutral third-party.


10.             Whether it would be detrimental to the child if one parent were to have sole authority over the childís upbringing.† The guardian concluded that it would be detrimental for [mother] to have sole authority over the childís upbringing due to her failure to communicate with [father] on important matters regarding the child and her ďlack of insight into her own destructive conduct towards [I.N.]Ē† This court is also concerned about [motherís] attitude and behavior.† For that reason, the Court agree with the parties in finding that joint legal custody is in the childís best interests, despite the partiesí inability to communicate productively in the past.

The guardian also testified that it would be detrimental to the child for either parent to have sole physical custody of the child.† However, the Court does not find that it would be detrimental to the child for one parent to have physical custody.† Due to the partiesí inability to cooperate, the Court finds that this is not a situation where joint physical custody is a viable option at this time.


††††††††††† ††† †****


11.             The best interests and welfare of the child will be served if joint legal custody is awarded to the parties and sole physical custody is awarded to [mother], subject to reasonable and liberal visitation by the [father], and subject to the provision of [12] below.


12.             Due to the lack of cooperation between the parties and the contempt [mother] has shown for [fatherís] parental role, the Court is guarded in its decision regarding physical custody.† This court is highly concerned that if [motherís] hostility towards the [father] and her interference with the father-son relationship continues, the minor child will be negatively affected.† Therefore, the Court finds it necessary to grant sole physical custody to the [mother] on a temporary basis to begin with, subject to being made permanent custody based on the following.

Joan Miller shall continue to act as guardian ad litem for the child for the next four months.† At the end of the four-month period, Ms. Miller shall make a written report to the Court informing the Court as to whether [motherís] behavior towards and contempt for [father] has improved and whether or not the pattern of conflict between the parties has begun to subside.† Ms. Miller shall also make a recommendation to the Court as to whether she believes a review hearing of the custody determination is necessary.† The Court reserves the right to schedule a review hearing on the custody issue at that time.


††††††††††† The district court made the following findings in April of 2000: (1) an evidentiary hearing is not necessary; and (2) the motherís conduct toward the father has not improved.† She ďshould be mindful that if her non-cooperative behavior and attitude in matters relating to [fatherís] relationship with the child continues, she could very likely lose custody sooner or laterĒ; (3) this is not a case where joint custody would be feasible; and therefore, (4) it is in the best interests of the child that the mother be awarded sole physical custody

While the district court incorporated the findings of the guardian ad litem in its findings, the district court did not accept the guardianís recommendation that joint physical custody should be awarded and an evidentiary hearing held.† On appeal, appellant seeks reversal of the district courtís custody determination and an award of sole physical custody.


Appellant does not challenge the district courtís best interests findings; but rather, challenges the district courtís conclusion of law based on those findings, asserting that a proper application of the law requires that sole physical custody be awarded to appellant, not respondent.† A district court has broad discretion to resolve custody issues.† Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).† This court will not reverse a district courtís custody determination absent a showing that the district court abused its discretion by improperly applying the law.† Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).† While ďcurrent law leaves scant if any room for an appellate court to question the district courtís balancing of best-interest considerations,Ē Id. 607 N.W.2d at 477, a district court must express its reasons for rejecting the custody recommendation, and explain how it balanced and weighed the custody factors.† Minn. Stat. ß 518.17, subd. 1(a) (2000); Holmberg v. Holmberg, 529 N.W.2d 456, 458 (Minn. App. 1995), review denied (Minn. May 31, 1995); Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).† Failure of a district court to sufficiently explain the tie between its findings on custody and its conclusion requires a remand.† Rogge, 509 N.W.2d at 166.

††††††††††† While the findings and conclusions of the district court clearly address a variety of factors, the district court failed to draw a nexus between its findings on custody factors and its conclusions.† The district court made detailed findings of fact on each of the statutory best interests factors; yet, absent from the district courtís explanation of its decision is any demonstration that it balanced and attributed weight to each custody factor in making its final determination regarding custody.† See Minn. Stat. ß 518.17, subd. 1(a) (legislating that courts may not use one factor to the exclusion of all others); Maxfield v. Maxfield, 452 N.W.2d 219, 222 (Minn. 1990) (holding primary caretaker factor is not to be applied mechanically, but in light of all relevant statutory factors); Rogge, 509 N.W.2d at 165 (remanding where the court found that child was endangered in his present placement, but the district court had failed to make findings on other certain "best interests" factors).† Nor is there any discussion as to how any of the best interests factors weighed in favor of, or against, either party.† Furthermore, the district court failed to explain its reasons for rejecting the recommendation of the guardian ad litem, who asserted that it would be detrimental to I.N. for the mother to have sole physical custody.† See Rogge, 509 N.W.2d at 166 (remanding for explanation where district court reached a custody decision contrary to that recommended).

††††††††††† The district court awarded custody to a parent despite finding that the parentís behavior will negatively affect the child in the future.† See Rogge, 509 N.W.2d at 166-67 (remanding for explanation where district court modified custody in favor of father despite evidence of harmful conduct by father and recommendations by professionals that the father should not be awarded custody rights).† Granting sole physical custody to a parent, where there is evidence that that parentís behavior is harmful to the child is generally not favored in the law.† See e.g., Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994) (holding that custody may be modified if it is established that custody with one parent poses a threat to a childís welfare; the parentís conduct must have an actual adverse effect on the child).

††††††††††† †The district court made the finding that some of the behavior of the mother will have a negative impact on I.N.† First, the district court found that the mother failed to set appropriate boundaries between herself and I.N.† This finding was based on evidence that: (1) I.N. continues to sleep with his mother; (2) I.N. refuses to wear clothes and is not required to do so by his mother; (3) the mother was still breast feeding I.N. at age five; and (4) the mother failed to keep I.N. from eating out of the dog dish.† Second, the district court found that the motherís hostile and inflexible attitude toward the father will negatively affect I.N.† Finally, the district court found that the mother belittled the father and his parenting style in front of the child, causing the father to take a reduced parental role.† The district court, however, did not make any corresponding findings that would show that any of the fatherís behaviors might have a negative impact on the child.

††††††††††† We cannot speculate as to how the district court reached its determination on the issue of custody; rather, the district court must ďexplain how the factors led to its conclusions and to the determination of the best interests of the child.Ē Minn. Stat. ß 518.17, subd. 1(a) (2000); see also Holmberg, 529 N.W.2d at 458 (affirming, where the district court explained the tie between its findings on custody and its conclusions); Rogge, 509 N.W.2d at 166 (remanding where the district court failed to make findings on all ďbest interestsĒ factors).† Because the district court did not sufficiently explain its conclusion on the custody determination, we must remand the case for further findings.† On remand, the district court may hold an evidentiary hearing and take additional evidence, as it deems necessary.

††††††††††† By motion, respondent seeks need-based attorneysí fees on appeal under Minn. Stat. ß 518.14, subd. 1 (2000).† Because the respondent has demonstrated a need for such an award and the fees are reasonable, we award respondent $2,500.

††††††††††† Remanded.

††††††††††† * Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.