This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-801

 

In re the Custody and Paternity of C. J. P., a minor child.

Matthew C. Pederson, petitioner,

Appellant,

 

vs.

 

Kim M. Freismuth,

Respondent,

 

and

 

C. J. P.,

Minor Child.

 

Filed November 20, 2001

Affirmed

Kalitowski, Judge

 

Crow Wing County District Court

File No. F30050086

 

Patricia A. Aanes, Erickson and Pearson Law Offices, 319 South Sixth Street, P.O. Box 525, Brainerd, MN 56401 (for appellant)

 

David C. Lund, Legal Aid Service of Northeastern Minnesota, 235 Main Street South, Pine City, MN 55063 (for respondent)

 

Charles D. Halverson, 221 Chippewa Street, Brainerd, MN 56401 (for guardian ad litem Edward R. Shaw)

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Matthew Pederson argues that the district court erred in denying his request to be adjudicated the biological father of C.J.P.  Appellant also contends the court erred by awarding custody of C.J.P. to respondent, C.J.P.’s biological mother.  We affirm.

D E C I S I O N

I.

“[T]he purpose of a paternity action * * * is to legally determine a biological parent of a child.”  Spaeth v. Warren, 478 N.W.2d 319, 322 (Minn. App. 1991), review denied (Minn. Jan. 30, 1992).  Appellant and respondent were never married, and appellant was not named on C.J.P.’s birth certificate.  But in his petition to determine paternity and custody appellant introduced evidence that he received C.J.P. into his home and held him out as his own during the first two years of C.J.P.’s life, thus creating a presumption of paternity pursuant to Minn. Stat. § 257.55, subd. (1)(d) (1998).  Respondent, pursuant to Minn. Stat. § 257.55, subd. 2 (1998), filed a counter-petition and introduced clear and convincing evidence based on genetic testing that rebutted the presumption that appellant was the biological father.

A paternity action is a legal determination of a biological fact and the genetic test established the biological fact that appellant is not C.J.P.’s father.  Therefore, because the genetic testing provided clear and convincing evidence of nonpaternity, we cannot say the district court erred in determining that respondent rebutted appellant’s presumption of paternity and in issuing an order that concluded appellant is not C.J.P.’s biological father.     

II.

In custody matters a high regard must necessarily be given to the district court’s discretion.  Wallin v. Wallin, 187 N.W.2d 627, 631 (Minn. 1971).  “Because this court is limited in its function to correcting errors it cannot create public policy.”  LaChapelle v. Mitten, 607 N.W.2d 151, 159 (Minn. App. 2000), review denied (Minn. May 16, 2000).  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  In determining matters of custody, the district court is vested with broad discretion, such that its determination will be reversed only if such judgment was a clear abuse of discretion.  Wallin, 187 N.W.2d at 631.

Appellant contends that the district court abused its discretion by not analyzing and ruling on his contention that he should be awarded physical custody of C.J.P.  We disagree.  Minn. Stat. § 257.541 (1998) allows only a biological parent to petition for custody under a paternity proceeding.  The request for custody that appellant included in his paternity petition was based on his assertion of paternity.  Appellant’s pleadings taken as a whole did not indicate that he was raising an alternative argument for custody based on a third-party custody theory.  Therefore, because the district court properly determined appellant is not the biological father of C.J.P., we conclude the court did not abuse its discretion in awarding sole legal and physical custody of C.J.P. to respondent without addressing appellant’s assertion that it was in C.J.P.’s best interests that appellant be awarded custody.

Affirmed.



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.