This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota, ex rel.,


Pennington County and


Tammy Psotka,





Timothy Benson,



Filed August 20, 2002


Lansing, Judge


Pennington County District Court

File No. F79350045



Kevin T. Duffy, PO Box 715, Thief River Falls, MN  56701 (for appellants)


Timothy Benson, 485 West Nees, Apt. 247, Fresno, CA 93711 (pro se respondent)


            Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N




            The district court granted Timothy Benson’s pro se motion for a modified visitation schedule with his son, D.B., to accommodate Benson’s move to California to pursue a college education.  Pennington County, on behalf of D.B.’s mother, challenges the adequacy of both the hearing and the district court’s factual findings.  Because the district court did not abuse its discretion in the hearing procedure or in the substance of the findings, we affirm.


            Tammy Psotka and Timothy Benson are the parents of D.B., who was born in April 1991.  In the 1993 stipulated adjudication of Benson’s paternity, Psotka and Benson agreed that Psotka would have sole legal and physical custody of D.B.  The order provided that Benson would have reasonable visitation upon 24-hours’ notice.

            In 1999, Benson moved to Fresno, California, to pursue a bachelor’s degree in mechanical engineering.  In 2001, Benson filed a pro se motion to set a specific visitation schedule because of the problems that had developed under the unstructured visitation.  Benson requested summer visitation, Christmas visitation, and a set time for a weekly telephone call.

            Psotka filed a responsive motion requesting that the proposed visitation be denied.  In her affidavit accompanying the motion, Psotka agreed to set a time for a weekly telephone call but contested the summer and Christmas visitation because of Benson’s limited contact with D.B., the emotional effect on D.B. if Benson did not consistently exercise visitation, and alleged threats by Benson to take D.B. away and not return him.  Psotka requested supervision for any visitation between Benson and D.B.

The district court granted Benson’s request for one week’s Christmas visitation every other year, three weeks’ summer visitation, and one telephone call every Sunday at 6:30 p.m.  Psotka appeals, arguing that the district court abused its discretion by failing to conduct an evidentiary hearing on her allegations that the visitation would place D.B. in danger of harm and by failing to make findings of fact to support the visitation modification.


            The district court has broad discretion in deciding visitation issues.  Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978).  Minnesota law provides for the modification of visitation when modification serves a child’s best interests.  Minn. Stat. § 518.175, subd. 5 (2000).  If the custodial parent makes specific allegations that parenting time places a child in danger of harm, the court shall hold a hearing to determine the need for modification.  Id.  The district court’s determination on visitation will not be reversed absent a clear abuse of discretion.  Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974).


Psotka argues that the district court abused its discretion when it failed to schedule an evidentiary hearing on her allegation that allowing visitation with Benson in California would be harmful to D.B.  She alleges that visitation would place D.B. in danger of harm because Benson has not had contact with D.B. for more than eight years; may not consistently follow through on the visitation arrangements, which would affect D.B. emotionally; and threatened at some unspecified time to take D.B. away from Psotka and not return him.

This court has previously applied the threshold standards for custody modification hearings to motions to modify visitation.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001) (concluding that custody-modification standards govern substantial modifications of visitation rights), review denied (Minn. Oct. 24, 2001); Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992) (same).  Thus, the district court should grant an evidentiary hearing under Minn. Stat. § 518.175, subd. 5, if the custodial parent submits affidavits that taken as true, establish a prima facie case that visitation places the child in danger of harm.  See Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (applying prima facie standard to custody-modification motions).  In requiring a threshold of “endangerment” in the context of child custody, the legislature “likely intended to demand a showing of a significant degree of danger.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  Normally, the conduct or circumstances of a parent do not establish danger to the welfare of a child without evidence of adverse effects.  Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994).

For two reasons we conclude that the district court did not abuse its discretion in conducting an in-chambers hearing, rather than a full evidentiary hearing, on Benson’s motion to modify visitation and Psotka’s motion in opposition.  First, Psotka has not made specific allegations that D.B. would be placed in danger by spending one week every other year at Christmas and three weeks during the summer with Benson.  Psotka’s allegation that Benson has not had physical contact with D.B. for eight years is disputed, and the record is replete with evidence of e-mail exchanges and Benson’s attempts to establish telephone communication with D.B.  To alleviate any initial problems, the district court ordered that Benson and D.B. have visitation in Minnesota immediately after the hearing and also ordered Benson to personally pick up D.B. and personally return D.B. to Psotka’s residence for the first summer visitation.  Psotka’s allegation that Benson threatened to take D.B. and not return him is vague.  Psotka provided no date, no context, and no details on what Benson purportedly said.  Psotka’s final allegation—that Benson would not consistently exercise visitation—is speculative both with respect to occurrence and harmful effect.  The record, in fact, demonstrates that Benson has persevered in his attempts to establish a father-son relationship with D.B.

Second, Psotka did not ask for a more extensive evidentiary hearing than she received.  Psotka and Benson were both present at the hearing, and each had submitted affidavits.  Psotka’s attorney appeared by telephone.  Psotka fully explained her concerns about the proposed changes in visitation.  Psotka has not indicated what additional evidence, if any, she would present at an extended hearing.


Psotka also asserts that the district court erred by failing to make factual findings to support its decision that modification of the visitation schedule is in D.B.’s best interests.  Particularized findings of fact are required when determining a child’s best interests.  Moravick v. Moravick, 461 N.W.2d 408, 409 (Minn. App. 1990).

The district court provided a detailed order on the procedures and the specific times for visitation.  Psotka acknowledged at the hearing that she fully understood that Benson should have a parent-child relationship with D.B.  Because the issues raised at the hearing related to how visitation would be structured and not whether it should occur, the order was tailored to resolving the procedural issues.  But the order is augmented by the district court’s findings on the record at the hearing that directly addressed D.B.’s best interests.  The court twice stated that, in order to meet D.B.’s needs, both parents must accommodate Benson’s move and that D.B. was entitled to a relationship with both his mother and his father.  The court explained that both D.B.’s needs and the law required that his parents work together to facilitate visitation.  See Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978) (visitation is “essential to the continuance and maintenance of a child-to-parent relationship” and denial of this right must be based on “persuasive evidence that visitation will not serve the best interests of the child”). 

The court had ample information to support its findings that the modification to the visitation schedule with its attendant protections was in D.B.’s best interests.  The court did not abuse its discretion in modifying visitation.