This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Marriage of:

Laurel D. Labat, petitioner,


Daniel J. Labat,


Filed July 24, 2001


Crippen, Judge


Becker County District Court

File No. F100338



Mary G. Sorum, Thorwaldsen, Malmstrom, Sorum & Donehower, P.L.L.P., 1105 Highway Ten East, P.O. Box 1599, Detroit Lakes, MN 56502-1599 (for respondent)


DeAnn M. Pladson, Maring Williams Law Office, P.C., Suite 105, 1220 Main Avenue, P.O. Box 2103, Fargo, ND 58107-2103 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N



            Appellant Daniel Labat contends that the trial court abused its discretion when it created joint legal and physical custody of the parties’ three children but split their primary residential care.  Because the record supports the court’s findings and the court sufficiently identified proper considerations for exercising its discretion, we affirm.



In November 1999, Laurel Labat and Daniel Labat separated but shared custody of their three children, J.L., M.L., and B.L., now ages 14, 9, and 7 respectively, by alternating custody weekly.  The parties stipulated to a property settlement but disputed custody.  At the custody hearing in October 2000, appellant sought sole physical custody of all three children, a position supported in a recommendation of the guardian ad litem for the children.  Respondent requested sole physical custody of 14-year-old J.L. because of their special relationship and joint physical custody of the boys, M.L. and B.L.

In November 2000, the court ordered joint physical and legal custody of all three children but ordered that J.L.’s primary residence would be with respondent while the boys’ primary residence would be with appellant.



A trial court has “broad discretion” to provide for the custody of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citations omitted).  When determining custody, the court must consider the children’s best interests.  Minn. Stat. § 518.17, subd. 3(a)(3) (2000); see also id., subd. 1(a) (listing best interests considerations).  The law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  Split custody, while disfavored, may be ordered when it is in the best interests of the children.  Lawver v. Lawver, 360 N.W.2d 471, 473 (Minn. App. 1985).

Appellant contends that the trial court abused its discretion by splitting the primary residential care of the three children, but the trial court identified several unusual circumstances sufficient to permit this arrangement.  First, the court noted that respondent was the primary caretaker of J.L. and that J.L. has a strong, bonded relationship with her mother, would be “more apt to thrive” in her mother’s care, and uses her mother as an intermediary to better deal with her father.  Second, there is a natural age and gender division between J.L. and her younger brothers that has led J.L to have vastly different “activities, interests, emotional needs and physical care” from her two brothers.  Third, the court noted, as do we, that this is not a classic custody split but a division of primary residential care between two parents who have joint physical and legal custody of all the children—and, as a matter of fact, an arrangement in which the children have significant interaction with each other.  Appellant has not shown that the trial court abused its discretion in this case.    

Appellant cites social-science literature for his contention that the court made an inherently anti-child decision by splitting the residential care of the children.  Appellant did not offer a complete study of the pertinent literature, however, and none of the studies appellant cited suggests that the court’s arrangement would be inappropriate under the unique circumstances of this case.  And we are mindful of the standard of review in custody cases.  Even if we would have made a different decision, we review the case for an abuse of discretion and have found none. 

Appellant complains that the court misused the primary-caretaker consideration in placing custody of J.L. with her mother.  The record does not suggest that this factor was used to the exclusion of others or was given presumptive weight.  See Minn. Stat. § 518.17, subd. 1 (2000) (prohibiting exclusive or presumptive weight for primary-caretaker consideration).  To the contrary, the court gave significant weight to the needs of the child, respondent’s ability to meet those needs, and the nature of J.L.’s relationship with her siblings.

Appellant contends that the court erred by making a finding that alludes to the full-time care of J.L. because no one proposed that either parent would care for J.L. full time.  The court made this observation to support its decision to place J.L.’s primary residence with respondent and the trial court’s observation makes sense in that context.

Appellant contends that the court based its decision only on gender.  Although the trial court noted gender in its decision, the court supported its decision with numerous other findings that focused on J.L.’s best interests as a whole.  Moreover, the court did not order that appellant would have sole physical custody of the boys and respondent would have sole physical custody of the girl but instead ordered joint physical custody for all three children.

Appellant contends that the court ignored the guardian ad litem’s recommendations but acknowledges that the court does not have to follow those recommendations.  E.g., Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  As required, the court’s numerous findings examine the same factors and issues that the report covered.  Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994). 

We have reviewed but find no merit in appellant’s substantial recitation of errors in the trial court’s findings.  Appellant contends that the court failed to consider the parents’ wishes.  Although the court did not make a separate finding about the parents’ wishes, the decision reflects the court’s consideration of their wishes and there are references to their wishes in the decision. The record also supports the court’s other findings.  There was evidence that appellant was somewhat depressed and philosophic, that respondent was the primary caretaker, that J.L. often took care of her brothers, and that J.L. used her mother as an intermediary.  Any error in the court’s characterizations is harmless or insignificant.

Finally, appellant contends that the trial court erred by awarding joint physical custody instead of sole physical custody.  Again, we find that the trial court acted within its discretion.  The court’s findings address all the relevant subjects and support the court’s ultimate conclusions.