This opinion will be unpublished and

may not be cited except as provided by

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






In re Custody of:  E.A.B., W.L., et al., co-petitioners,




Filed July 23, 2002


Minge, Judge


Cass County District Court

File No. F4001224



John M. Jerabek, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 700, Minneapolis, MN 55402-1110; and


Mark D. Fiddler, 4751 Dupont Avenue South, Minneapolis, MN 55409 (for appellants)


Judith E. Payne, Water’s Edge, Suite 220, 6885 Boudin Street N.E., Prior Lake, MN 55372-1482 (for respondent)


Diane L. Simerson, Robins, Kaplan, Miller & Ciresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue South, Minneapolis, MN 55402; and


Laurie Hanson, Legal Aid Society of Minneapolis, 2929 Fourth Avenue South, Suite 201, Minneapolis, MN 55408 (for amici curiae)


            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Minge, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            In this custody dispute, appellant-grandparents argue the district court (a) gave too much weight to the parties’ settlement agreement and its truncation of the best-interests-of-the-child standard; (b) failed to make adequate findings regarding the child’s best interests; (c) misapplied the standard for awarding custody to a nonparent set out in Wallin v. Wallin, 290 Minn. 261, 187 N.W.2d 627 (1971), and In re Custody of N.M.O., 399 N.W.2d 700 (Minn. App. 1987); and (d) failed to address the admissibility of the deposition testimony of the child’s earlier guardian ad litem (GAL).  Because the district court correctly applied the best-interests standard and the standard for awarding custody to a nonparent, we affirm.




            E.A.B., now age nine, began living sporadically with her paternal grandparents, appellants W.L. and P.L., in November 1994.  In 1995, Nobles County filed a child protection petition alleging neglect of E.A.B. by her mother.  Following an investigation, the court placed E.A.B. with her grandparents in September 1995, where she stayed until May 1996, when she was reunited with her mother.  Despite the reunification, E.A.B. continued to live with her grandparents until her mother died in April 2000.

Respondent S.L., E.A.B.’s father, played a relatively small role in E.A.B.’s life before her mother’s death, in part because of the acrimonious relationship between mother and father, and in part because he was not ready to take on the responsibility of parenting.  According to the grandparents, from 1994 through 1996, the father visited E.A.B. only a few times.  The grandparents acknowledge, however, that father was consistently present for her birthdays and holidays, and he provided health and dental insurance for E.A.B. from her birth until his job status changed in December 2000.

In 1999, the grandfather retired and moved to Remer, Minnesota, where he enrolled E.A.B. in school.  Despite the distance, the father frequently visited E.A.B.  The grandmother continues to work and live in Anoka and travels to Remer on the weekends to visit E.A.B. 

In September 2000, the father remarried, and in November told his parents (E.A.B.’s grandparents) he wanted custody of E.A.B.  The father has not been allowed into either of his parents’ home since then, and they did not attend his wedding.  The grandparents immediately petitioned for permanent physical and legal custody of E.A.B.  The father moved for emergency temporary custody of E.A.B., and the district court held a hearing.  Subsequently, the parties entered into a settlement agreement that the court adopted in its November 20, 2000, order.  In that order, the court determined that it was in the best interests of E.A.B. if the grandparents retained temporary physical custody; the father and the grandparents shared legal custody; and the parties sought to transfer sole physical and legal custody to the father by June 25, 2001, subject to the terms and conditions of the order.  The court also ordered the father to complete a parenting class and make suitable arrangements for daycare, and both parties had to keep hunting weapons and ammunition locked and out of E.A.B.’s reach.  Moreover, both parties had to refrain from exposing E.A.B. to age-inappropriate and unsuitable materials.  The settlement order bound the parties

unless the court, upon its own motion or the motion of a party, finds that a transfer of physical and legal custody of the child to [father] is inconsistent with the best interests of the child.


As the time grew closer for the father to assume custody, the grandparents had a change of heart and moved to void the settlement order as inconsistent with E.A.B.’s best interests.  The grandparents essentially argued that the father was not mature or stable enough to be a parent if he gained permanent custody.  The father opposed grandparents’ motion, seeking sole legal and physical custody of E.A.B.   The grandparents moved for a custody evaluation, which the court granted.  The court granted both parties joint legal and physical custody and ordered that E.A.B. begin living with her father.

            The court appointed a guardian ad litem (GAL) for E.A.B. to complete a custody and child-study evaluation.  In her report, the GAL expressed concern over the sincerity of the father’s interest in parenting E.A.B., given his lack of involvement before September 2000.  The GAL also noted the strong bond between E.A.B. and the grandparents as well as E.A.B.’s wish to continue living with the grandparents.  The report acknowledged that the father and his wife had made positive efforts to parent E.A.B., acquiring a two-bedroom home, taking parenting classes, and seeking counseling for E.A.B. and themselves.  The GAL concluded “[i]t appears to be every ones goal to unite [father and E.A.B.] at some time,” and she ultimately recommended that E.A.B. complete the 2001-02 school year with her grandparents to ease the transition to the father’s custody.

            At the evidentiary hearing, the court heard testimony from several people, including the grandfather, the father and his wife, E.A.B.’s relatives, her school teachers, a social worker, and the GAL.  The grandfather testified that he was not trying to take E.A.B. away from her father permanently—only until her father could provide a stable environment.  The GAL testified that E.A.B. and her father were affectionate toward one another, that the father’s home was “child friendly,” and that she thought E.A.B. would adjust to the custody transfer.  The school social worker testified that E.A.B. exhibited some anxiety when she erroneously believed that she had to make the decision about where she was going to live.  The social worker also testified that E.A.B. does best with more structure in her life.  The father testified that he had made mistakes in the past but that after E.A.B.’s mother died he wanted to take responsibility for raising his daughter.

Following the hearing, the district court made specific best-interests findings pursuant to Minn. Stat. § 518.17 (2000).  The court concluded that “[i]t is not contrary to the best interests of the child that [father] be awarded physical custody of [E.A.B.].”  The court also found that the father completed all of the obligations set forth in the settlement agreement and awarded him physical custody subject to reasonable visitation by the grandparents.  The parties continue to share joint legal custody.  The grandparents subsequently filed a motion for a new trial or amended findings, which the district court denied.  This appeal followed.





Custody awards are based on a child’s “best interests.”  Minn. Stat. § 518.17, subd. 3(a)(3) (2000).  A district court has broad discretion to provide for the custody of the parties’ children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Appellate court review of a custody determination is limited to 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 (Minn. 1996).  Findings of fact will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01. 

A finding is “clearly erroneous” if the reviewing court is ‘“left with the definite and firm conviction that a mistake has been made.’” When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court’s findings. 


Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (citations omitted).

A.  Stipulated custody agreement between the parties

Grandparents first argue that the district court attached undue significance to the parties’ stipulated custody agreement.

Although considerable weight is given to stipulations intelligently entered with the benefit of counsel, in determining questions of custody the paramount issue remains the welfare and best interests of the [child].  The court must in every case exercise an independent judgment and is not bound by the stipulation.


Petersen v. Petersen, 296 Minn. 147, 148, 206 N.W.2d 658, 659 (1973) (citation omitted).

In making their argument, the grandparents assert that the district court admitted to applying a “lesser” standard than “the best-interests-of-the-child” standard in making its custody determination.  The grandparents rely on the following exchange that took place on a telephone conference hearing on the grandparents’ motion for a new trial and/or amended findings:



The other point I wanted to raise, Judge, is that the Court in its decision, * * * didn’t make some findings. There is a brief analysis of all the best interests factors. And I’m assuming that the reason that the Court didn’t go into all the factors is the Court assumed there was a less searching standard that needed to be applied because of the posture of this case.


That’s right.

The record as a whole belies the court’s two-word statement.  The parties entered into a settlement agreement that anticipated the transfer of custody from the grandparents to the father.  And the court adopted the agreement in its November 20, 2000, order.  Although the order does not make specific findings related to the statutory “best-interests” factors, it is not the one from which the grandparents appeal.  The order on appeal is the September 14, 2001, order, where the court does make specific findings related to the statutory “best-interests” factors.

The record further establishes that while the court considered the parties’ agreement, it made its own independent assessment of the child’s best interests in making its final custody determination.  The court’s reliance on the settlement agreement appears tied to the fact that the grandparents have always conceded that the father should eventually have custody of E.A.B.  We conclude that the district court did not unduly weigh the parties’ settlement agreement and order.

B.  Findings related to “best interests” statutory factors


The grandparents next argue that the district court erred in not making the required statutory findings.[1]  Minn. Stat. § 518.17, subd. 1 (2000), governs custody disputes and enumerates the “best interests” factors that a court must consider when making a custody determination.  A court must make findings on eleven factors, including the parents’ wishes, the child’s primary caretaker, and the child’s adjustment to home, school and community.  Id.  The court may not use one factor to the exclusion of all others and the primary-caretaker factor may not be used as a presumption in determining the best interests of the child.  Id., subd. 1 (13) (2000).

            After hearing conflicting testimony, the district court specifically addressed all but one of the statutory factors, finding that (1) the father wished to have custody of E.A.B.; (2) E.A.B. was not of a sufficient age to express a reasonable preference; (3) E.A.B. has had multiple primary caretakers; (4) both parties have an intimate relationship with E.A.B.; (5) the grandparents provided significant interaction with E.A.B.’s maternal relatives; (6) E.A.B. has adjusted well to her home, both with her grandparents and more recently with the father; (7) E.A.B. had been in a relatively stable environment with her grandparents; (8) the father and his wife are in good physical and mental health; (9) the father has the greater capacity and disposition to give E.A.B. the most appropriate love, affection, and guidance; and (10) the multi-cultural relationship of father and his wife would better serve E.A.B.

The only statutory factor not expressly addressed was the permanence of the existing or proposed custodial home.  This was inadvertently considered when the court found that “the age appropriate relationship of the father and his wife to the child [is] significant.”  The grandparents argue that the statute does not recognize age appropriate relationships of a party as a factor in making a custody determination.  Even conceding that this is different from the “permanence” factor, the statute does not claim to be an exhaustive or exclusive list of factors the court can consider.  It provides, “[t]he best interests of the child means all relevant factors to be considered and evaluated by the court including * * * ” and then lists the factors delineated above.  Id., subd. 1.  Thus, the court is free to consider additional factors it deems relevant to the child’s best interests.

The grandparents also dispute the finding that the father “has the greater capacity  * * * to give [E.A.B.] the most appropriate love, affection and guidance.” The grandparents argue there is no support in the record for such a finding.  The fact, however, that the grandparents expect the father to assume custody of E.A.B. in the future would support the court’s finding.  While the findings could have been set forth with a higher degree of particularity, the record as a whole supports the district court’s findings.  The fact that the record might support findings other than those made by the district court does not establish that the court’s findings are defective.  Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

            In sum, each of the findings has ample basis in the record, and, as a whole, the findings show that the court independently considered the relevant factors.  Moreover, the law currently “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.” Vangsness, 607 N.W.2d at 477.  Accordingly, we conclude that the district court findings are adequate and not clearly erroneous.

C.  Application of the Wallin standard


The grandparents next argue that the district court misapplied the standard for deciding custody disputes between a parent and a third party set out in Wallin v. Wallin, 290 Minn. 261, 187 N.W.2d 627 (1971), and In re Custody of N.M.O., 399 N.W.2d 700 (Minn. App. 1987). 

When deciding custody disputes between a parent and a third party, the presumption that a natural parent is entitled to custody of his own child will not be overturned unless it clearly appears that [the parent] is unfit or has abandoned [the parent’s] right to custody, or unless there are some extraordinary circumstances which would require [the parent] be deprived of custody. Minnesota statutes and case law, however, recognize that a district court’s primary commitment in matters concerning custody is the best interests of the child.


J.W. ex rel. D.W. v. C.M., 627 N.W.2d 687, 692 (Minn. App. 2001) (quotation omitted), review denied (Minn. Aug. 15, 2001).  Thus, Wallin presumes biological parents are entitled to custody unless parental shortcomings exist or unless such custody is not otherwise in the best interests of the child. Mize v. Kendall, 621 N.W.2d 804, 808 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001). Only grave reasons will deprive a natural parent of custody.  Durkin, 442 N.W.2d at 153.

The grandparents argue that (1) “extraordinary circumstances” justify the award of custody of E.A.B. to them; and (2) the district court failed to apply a best-interests standard, which would have favored placing E.A.B. with them.  The grandparents argue that, as the primary caretakers of E.A.B. since she was two, they are “her defacto parents.”  But “[u]nder Wallin, [* * *], integration of the child in the home of a third party, by itself, [does] not constitute grounds for placement with that caretaker.”  Mize, 621 N.W.2d at 809.  Moreover, “the primary caretaker factor may not be used as a presumption in determining the best interests of the child.”  Minn. Stat. § 518.17, subd. 1(a) (2000). It is also significant that, by the grandfather’s own testimony, the grandparents do not seek to deprive father of custody of E.A.B permanently.

As to the grandparents’ second argument, the court made numerous findings of fact as to E.A.B.’s best interests.  As set forth above, the record supports those findings.

Thus, the district court correctly applied the Wallin standard. Because the grandparents presented no evidence of “extraordinary circumstances” that would rebut the presumption that the father was a fit and caring parent, and because the best-interests considerations favor placement of E.A.B. with her father, we affirm the district court’s custody placement.




            Finally, the grandparents argue that the district court erred when it failed to admit the deposition testimony of the guardian ad litem for E.A.B. from a prior CHIPS proceeding, at the August 22, 2001 hearing.  The district court has broad discretion regarding the admission or exclusion of evidence and will not be reversed absent an abuse of discretion or erroneous view of the law.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Id.

            In 1995, the earlier GAL was assigned to complete a home study of the grandparent’s home prior to temporary placement of E.A.B. with her grandparents.  At the August 2001 hearing, the grandparents sought to introduce that GAL’s deposition testimony concerning her home study report.  The district court reserved ruling on the matter, but averred that the testimony was of doubtful relevance

the issue in light of the agreement that was made is whether the best interests of the child would be better served by being with the grandparents than the father. And that’s a fairly narrow issue in light of the agreement. So my inclination would be that it’s not relevant * * * .


Because the court did not explicitly rule on the testimony’s admissibility, we address whether the court erroneously excluded the evidence.

The grandparents argue they were prejudiced by the court’s refusal to rule on the admissibility of this evidence because it reflects the history of attachment, bonding, and stability between the child and her grandparents—evidence relevant to the best-interests statutory factors.

            The father points out that the very evidence the grandparents sought to admit via the GAL’s testimony was established through other testimony, including that of the grandparents and E.A.B.’s present GAL.  The record supports the father’s argument.  Indeed, the court made a finding that E.A.B. began living with the grandparents on a sporadic basis in late 1994 and that the grandparents had provided a “relatively stable environment” for E.A.B.  Therefore, the court’s failure to rule on the admissibility of the GAL’s 1995 report did not prejudice them.  Furthermore, because the home study report was conducted six years before the hearing and is, by definition, not a best-interests analysis, the district court’s determination that it was not relevant was not an abuse of discretion.


[1] Because father was adjudicated E.A.B.’s father, his custody rights are decided as an initial custody determination under Minn. Stat. § 518.17 (2000).  See Minn. Stat. § 257.541, subds. 2, 3 (2000) (stating conditions for proceeding in determining custody where child is born outside of marriage).