This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In Re the Welfare of:



M.M., petitioner,








Filed ­­­January 28, 2003


Harten, Judge


Clay County District Court

File No. F9-01-1899


Duane R. Breitling, Brenda R. Rosten, Ohnstad Twichell P.C., 15 Broadway, Suite 500, Fargo, ND 58102-4907 (for appellant)


Melinda L. Hanson Weerts, Weerts Allen, L.L.C., 606 First Avenue North, Suite 203, P.O. Box 2310, Fargo, ND 58108-2310 (for respondent)


            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N



            Appellant challenges the district court’s award of sole legal and physical custody of her child to respondent, who is appellant’s mother and the child’s maternal grandmother.  Because we see no clear error in the district court’s findings of fact and conclude that grave and weighty reasons supported the award of custody to a non-parent, we affirm.



            For most of his life, D.M., now age seven, has lived with his maternal grandmother, respondent Melody Mortenson.  Appellant Jessica Lahr, f/k/a Jessica Mortenson, respondent’s daughter and D.M.’s mother, lived with them for much of that time.  Appellant twice signed documents making respondent the guardian of D.M., once for a period of several months and once for a year.

            D.M., by all accounts, is afraid of appellant’s present husband, Wayne Lahr; he does not want to be with Lahr or at Lahr’s house.[1]  In October 2001, after appellant had left D.M. with Lahr, D.M. spoke to respondent on the phone, saying he was afraid and wanted to come home.  When respondent came to pick him up, Lahr called the police and ordered her off the property.  The next day, respondent moved for temporary physical custody of D.M. pursuant to Minn. Stat. § 518.158 (2000).  The district court granted her motion, finding that respondent had been solely responsible for D.M.’s health, education, and welfare since 2000 and that appellant had failed to care for him or support him for a period of more than six months. 

            The court appointed a guardian ad litem (GAL) to do a custody evaluation.  The GAL produced reports in December 2001, January 2002, and April 2002.  In her December 2001 report, the GAL recommended a visitation schedule for appellant and D.M.  But the January 2002 report indicates that appellant did not follow the schedule.  The January 2002 report concluded that: (1) respondent had been D.M.’s primary caretaker and had demonstrated the ability to provide a permanent, safe, stable, environment for him; (2) appellant had not demonstrated this ability; (3) appellant had placed D.M. in “inappropriate situations” with Lahr’s family; (4) appellant had shown a lack of concern for D.M.’s well being; (5) appellant had been untruthful about her criminal history, her smoking, and her medical condition; (6) appellant had discouraged a positive relationship between D.M. and respondent, while respondent encourages a positive relationship between D.M. and appellant; (7) appellant had been unable to appropriately care for D.M.’s psychological and emotional needs; (8) appellant had placed herself before D.M.’s needs; (9) appellant had displayed total disregard for D.M.’s expressed fears and is unable to protect D.M.; and (10) D.M. loved both appellant and respondent.  Finally, the GAL concluded that grave reasons overcame the presumption in favor of parental custody.   She recommended that respondent have custody and that appellant have regular visitation, to be supervised until appellant completed a psychological evaluation and a parenting class and demonstrated compliance with her doctor’s recommendations and her medication treatment.

            At the hearing following this report, the district court ordered that appellant have visitation of one weekend day and one weekday afternoon.  Because D.M. fears Lahr, the court also ordered that Lahr not be present during visitation.  Lahr understood this: he had asked the district court if visitation could occur in his house providing he were not present.  The district court set another hearing in 90 days and ordered appellant to have a parental capacity evaluation and a chemical dependency evaluation.

            Prior to the next hearing, the GAL reported that:  (1) despite the court’s order, Lahr had been present for most of D.M.’s visitation with appellant; (2) D.M. consistently expressed the wish that his visits with appellant could be shorter and could occur at respondent’s home; (3) appellant had not been honest with either the parental capacity evaluator or the chemical dependency evaluator; (4) appellant’s brother was concerned about D.M. because appellant was drinking heavily and staying late at night at her ex-boyfriend’s home; (5) two collateral contacts, friends of appellant, expressed concern about D.M. because appellant was drinking heavily; (6) D.M.’s therapist reported that D.M. wanted his visits with appellant to be shorter, that D.M. said appellant did not believe him, and that D.M. said he was “trying to cry less” about having to spend time with appellant; and (7) D.M.’s therapist said D.M.’s relationship with appellant was peculiar in that it was devoid of strong feeling, that D.M. had probably never bonded with appellant, and that D.M. was bonded to respondent, “the only consistent, predictable, and nurturing caregiver in [his] life” and that “it is crucial that [D.M.] remain consistent and stable with [respondent.]”

            The GAL again recommended that D.M. reside with respondent and that, in light of appellant’s failure to obey the court’s order, visitation be supervised by a family member and occur at respondent’s home.

            The district court ordered judgment awarding sole legal and physical custody to respondent.  Appellant challenges that judgment, claiming that the findings of fact were erroneous, that no grave and weighty reasons overrode the presumption of appellant’s right to custody, and that the district court erred in awarding custody to respondent without setting conditions for appellant to regain custody.


1.         District Court Findings of Fact


            Appellate court review of custody determinations is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).  A district court’s findings will be sustained unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  When determining whether findings are clearly erroneous, an appellate court views the record in the light most favorable to the trial court’s findings.  N.A.K., 649 N.W.2d at 174.

            The district court’s findings are based on the three reports and the testimony of the GAL, who was examined by respondent’s attorney and cross-examined by appellant’s attorney.  The findings show that the district court also reviewed the reports of the parental capacity evaluator and of a therapist for D.M.  The findings are supported by evidence.

Appellant relies on Weatherly v. Weatherly, 330 N.W.2d 890 (Minn. 1983), to argue that the findings are deficient because they omit some negative information about respondent and some positive information about appellant.  But Weatherly is distinguishable: there, the district court had disregarded two professional evaluations of one party’s chemical dependency and had based its award in part on job stability rather than emotional stability.  Id. at 892.  Here, the district court acknowledged “plac[ing] great weight on [the GAL’s] findings and conclusions.”  The district court also made objective findings on both parties’ mental health:

Both [appellant] and [respondent] have histories of mental health interventions: both have received diagnoses of bipolar disorder.  [Respondent] is currently following prescribed medical treatment.  [Appellant] is not receiving any treatment.


We must view the record in the light most favorable to the district court’s findings.  N.A.K., 649 N.W.2d at 174.  And when viewed in that light, we conclude that the record demonstrates that the findings are supported by the evidence and must be sustained.

2.         Presumption of Parental Custody

            [A] * * * parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature, indicating that the best interests of the child require that the * * * parent be denied custody.


In re Custody of N.A.K., 649 N.W.2d 166, 175 (Minn. 2002).  Appellant contends that the district court ignored the presumption that she be awarded custody.  But the district court stated as a conclusion of law that, “[T]here is a presumption that [a] natural parent is entitled to custody * * * .  [Respondent] must show ‘grave reasons’ for preferring her to [appellant] as [D.M.’s] custodian.”  Obviously, the district court did not ignore the presumption; rather, it concluded that “extraordinary circumstances of a grave and weighty nature” overcame the presumption. 

[Appellant’s] lack of ability or inclination to fulfill her obligations as a parent, together with [respondent’s] proven ability to provide appropriate care and guidance for [D.M.] and his integration into her home, constitute grave and weighty reasons that, in the child’s best interests, [respondent] should be granted custody of her grandson.


Appellant claims this conclusion “is based on findings that do not wholly contradict [the] presumption of parental fitness.”  But the case on which she relies for this claim, In re P.L.C., 384 N.W.2d 222 (Minn. App. 1986), does not state that findings must “wholly contradict” the presumption.  The P.L.C. court reversed an award of custody to a nonparent because the district court had relied on factors extraneous to the parent-child relationship and on a psychological profile that showed the parent having a risk of detrimental behavior.  Id. at 227.  Here, the district court relied on the history of appellant’s relationship with D.M. and on professionals’ reports of appellant’s actual behavior.

We conclude that the presumption of appellant’s right to custody of D.M. was overcome by ample evidence. 

3.         Failure to Set Conditions


            Appellant argues that the district court erred as a matter of law when it awarded custody to respondent without setting conditions for appellant to regain custody.  Appellate courts review questions of law de novo.  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).  Appellant bases this argument on Minn. Stat. § 518.158, subd. 4 (2000).[2]  This subdivision has been problematic:


[I]t is unclear what effect the legislature intended this provision to have because it refers to an order for permanent custody “under this section,” while section 518.158 allows only for temporary ex parte orders.


Ramirez v. Ramirez, 630 N.W.2d 463, 467 (Minn. App. 2001).  Ramirez holds that, when permanent custody is granted to a nonparent in a proceeding under Minn. Stat. § 518.156, the court need not set conditions for a parent to meet to acquire custody.

Appellant argues that the district court was obliged to set conditions because this proceeding was conducted exclusively under Minn. Stat. § 518.158, but the record twice refutes that argument.  First, in its conclusions of law, the district court mentioned only one statute: “Minn. Stat. § 518.156 allows a non-parent to petition for custody of a child.” Second, the district court ordered appellant to provide the identity of D.M.’s putative father “so that written notice may be served upon him pursuant to Minn. Stat. § 518.156, subd. 2.”  It is reasonable to infer that the district court awarded respondent custody under Minn. Stat.§ 518.156.  Accordingly, we conclude that the district court was not required to set conditions for appellant to acquire custody, and its failure to do so was immaterial.


[1] We do not address whether D.M.’s fear is objectively reasonable; whether the fear repeatedly expressed by a seven-year-old child is reasonable or not, it must be acknowledged.

[2] Minn. Stat. § 518.158 (2000) has been repealed.  2002 Minn. Laws ch. 304 § 12.