This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Matter of: M.A.L-B., DOB 4/2/94, Minor Child.
Filed February 18, 2003
Isanti County District Court
File No. F6000602
William R. Lindman, 9418 East River Road, NW, Coon Rapids, MN 55433-4433 (for appellant)
Clark A. Joslin, 221 N.W. Second Avenue, Cambridge, MN 55008 (for respondents)
Considered and decided by Stoneburner, Presiding Judge, Anderson, Judge, and Wright, Judge.
G. BARRY ANDERSON, Judge
Appellant mother challenges the district court order granting permanent custody of her child to the child’s paternal grandparents and denying her any contact with the child. Appellant argues that the evidence presented at trial did not support the district court’s findings and seeks a new trial. Also appellant seeks attorney fees and moves to strike portions of respondent’s brief. Because the district court did not cite extraordinary circumstances of a grave and weighty nature indicating that the best interests of the child require denying mother custody, we remand the matter to the district court and deny appellant’s motion to strike and request for fees.
This matter comes to us with a long and complicated history, involving numerous parties bringing various legal actions in Isanti County District Court seeking the custody of M.A.L.-B., who is currently eight years old. Appellant Rachel LaQuier is the mother of M.A.L.-B. Appellant and Dustin Bulfer, father, never married, but M.A.L.-B., appellant and Bulfer lived together, in various locations, for 17 months following M.A.L.-B.’s birth. Bulfer and appellant’s relationship was stormy and filled with nearly constant emotional and physical conflict. M.A.L.-B. was present during many of these fights and on occasion, even though only a toddler, would attempt to physically separate his parents as they fought. M.A.L.-B. continued to live with appellant after appellant and Bulfer separated.
In December 1995, appellant contacted respondents, Joseph and Aloma Bulfer (grandparents), M.A.L.-B.’s paternal grandparents, and told them the stress of caring for M.A.L.-B. was overwhelming and asked them to care for M.A.L.-B. In March 1996, grandparents successfully petitioned for guardianship of M.A.L.-B. Although the district court granted custody of M.A.L.-B. to Bulfer in December 1998, M.A.L.-B. continued to live with his paternal grandparents, who were eventually granted custody.
Until recently, appellant has exhibited substantial instability, including holding a series of jobs that included employment with a carnival, traveling outside Minnesota on an extended tour. Appellant has now obtained steady employment through her community college and is also working part-time at a local restaurant.
Appellant has also had a series of romantic attachments after grandparents assumed custody of M.A.L.-B. The record presents conflicting testimony concerning the nature and dangerous circumstances of these relationships. For the past 18 months, appellant has been involved in a stable, and apparently healthy, relationship. Appellant enrolled in school and is currently working toward obtaining a criminal justice degree and becoming a probation officer.
It is clear from the record appellant has significantly improved her ability to parent and is doing well in therapy. While M.A.L.-B. was living with his grandparents, appellant gave birth to a daughter. The record reflects that appellant has made remarkable strides and is providing excellent care for her daughter.
The nature of, and M.A.L.-B.’s reaction to, his visits with appellant was strenuously contested at trial. When grandparents took custody of M.A.L.-B. in December 1996, they discovered a large bruise on his outer-upper thigh. The record suggests that when M.A.L.-B. visited with appellant she was alternatively neglectful and both physically and verbally abusive. Grandparents also testified that when M.A.L.-B. returned from these visits, his demeanor changed from a respectful and well-behaved child, to a child with significant behavioral issues using inappropriate language. The record also shows that appellant frequently missed scheduled visits with M.A.L.-B. and these missed visits had a demoralizing effect on M.A.L.-B.
In particular, grandparents alleged that following a visit with appellant, on Mother’s Day in 1999, where the appellant’s brother was supposed to have been present, M.A.L.-B. came back from the visit in an extremely agitated state. M.A.L.-B. returned from the visit squealing, hiding under furniture, wetting himself, and touched another family member inappropriately. M.A.L.-B.’s reaction to this visit was so pronounced that his teacher wrote a letter to the grandparents expressing concern about M.A.L.-B.’s dramatic deterioration at school. The teacher reported that M.A.L.-B. had begun hitting and pushing other students and was extremely disruptive. Appellant disputes these allegations and argues that M.A.L.-B. enjoyed his time with her and his sister and that he did not want to leave her when the visit was over.
Following a nine-day trial, the district court held that it was in the child’s best interest that (1) his grandparents be granted permanent physical and legal custody, (2) that appellant be denied any visitation until the child’s therapist determines that such visitation would be in M.A.L.-B.’s best interests, and (3) visitation be reviewed in one year. This appeal followed.
Appellant argues that the district court abused its discretion in granting permanent legal and physical custody to the grandparents. Specifically, appellant contends the district court abused its discretion by making findings not supported by the evidence produced at trial and therefore argues the matter should be remanded for a new trial.
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). Our 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.” Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).
In determining custody disputes between the mother of a minor child and its grandparents, courts have based their decisions on two basic doctrines. The first of these doctrines stands for the proposition that a mother is entitled to the custody of her children unless it clearly appears that she is unfit or has abandoned her right to custody, or unless there are some extraordinary circumstances, which would require that she be deprived of custody. The second doctrine is the so-called best-interest-of-the-child concept, according to which the welfare and interest of the child is the primary test to be applied in awarding custody.
Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971).
“As between the two doctrines, * * * the best interest of the child is always the overriding consideration in custody decisions.” In re N.M.O., 399, N.W.2d 700, 703 (Minn. App. 1987) (citing Wallin, 290 Minn. at 265, 187 N.W.2d at 630). The principal that the parent is the best person in whom to “vest” custody of their child “is distinctly subordinate to the controlling principle that the overriding consideration in custody proceedings is the child’s welfare.” Id. (quoting Wallin, 290 Minn. at 265, 187 N.W.2d at 630).
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) (quotations omitted), review denied (Minn. Mar. 27, 2001). The custodial presumption in favor of natural parents can be “overturned if there are ‘grave and weighty’ reasons to separate the child from his * * * natural parent.” In re N.A.K., 649 N.W.2d 166, 175 (Minn. 2002) (quotation omitted).
For example, in Durkin, the supreme court affirmed a district court ruling awarding custody to a family friend and denying visitation between parent and child. Durkin, 442 N.W.2d at 153. The court held that given that (1) the child was integrated into her new home, (2) the child showed significant developmental delay stemming from living with the mother, (3) “none of the experts testified” that the child should live with her mother, and (4) the experts agreed that removing her from the home and returning her to her mother would be extremely detrimental to the child and therefore the mother in Durkin should be denied custody or even the ability to visit her child. Id.
Here, the district court demonstrated considerable thought, care and reflection when it made nearly 40 separate findings in support of its decision to grant custody to the grandparents and prohibit appellant from having any contact with M.A.L.-B. until the child’s therapist decides it is in M.A.L.-B.’s best interests to resume contact. Although the district court did not explain why it decided to use the best interests of the child standard, the record does reflect that the parties stipulated to application of the best interests standard and the district court applied the agreed-upon standard.
Although the parties agreed that the custody decision would be made by applying the best interests standard, the district court was not at liberty to abandon the grave and weighty circumstances test mandated by the supreme court. The supreme court has held that parties could not stipulate to an alternative legal standard for modifying child custody. Frauenshuh v. Giese, 599 N.W.2d 153, 159 (Minn. 1999). The parties in Frauenshuh agreed to examine custody modification decisions under Minn. Stat. § 518.17, not the more rigorous standard required by Minn. Stat. § 518.18(d). Id. at 155. The court held “the role of the court in dissolution proceedings is strictly limited to that provided by statute.” Id. at 157 (quotation omitted). The court concluded that because the legislature did not specifically authorized the use of an alternative custody standard, the district court erred in applying an unauthorized standard. Id. at 159.
The supreme court did acknowledge that parties could agree to waive statutory rights to property during a dissolution. But because the legislature did not specifically approve waiving custodial rights and because the issues involved in a child custody dispute far outweigh those in a dispute over mere property, such a waiver is not permissible. Id. “There exists in our country a fundamental right of parents” to raise their children. Troxel v. Granville, 530 U.S. 57, 66, 1205 S. Ct. 2054, 2060 (2000). Therefore, we hold the parties here could not stipulate to the best interests of the child standard and the district court erred in not applying the grave and weighty analysis mandated by the supreme court.
The supreme court has recently addressed this issue in a decision issued after the appeal was filed in this case. See N.A.K., 649 N.W.2d at 166. In N.A.K. mother was awarded custody and father, after the dissolution, was minimally involved in his daughter’s life. Id. at 167-69. But after mother’s death, father sought custody of his daughter, then in the care of the daughter’s maternal aunt. Id. The district court applied the best interests of the child standard and awarded custody to the aunt. Id. at 170-71.
The supreme court acknowledged that the district court’s ruling reflected considerable care in reaching its decision. Id. at 176. The supreme court acknowledged that it was quite possible that exceptional circumstances would justify granting custody to the aunt. Id. Further, the N.A.K. court held there is no requirement that district court use the words “grave” and “weighty.” Id. at 177. But because the district court’s ruling did not “clearly take into account the right of a parent to custody is ‘paramount and superior to a third person,’” the matter was remanded to the district court for further findings. NA.K., at 176-77 (citing In re Hohmann, 225 Minn. 165, 170, 95 N.W.2d 643, 647 (1959)).
Given the district court’s detailed and thorough findings and analysis, the voluminous record here may very well contain grave and weighty reasons justifying an award of permanent legal custody to the child’s paternal grandparents particularly when that award is considered in light of appellant’s past disastrous attempts at parenting M.A.L.B., appellant’s refusal to cooperate with the court-appointed guardian ad litem, and the undisputed fact that M.A.L.B. has thrived in the case of his grandparents. See, e.g., Durkin, 442 N.W.2d at 153. But, as N.A.K. makes clear, the district court must apply the grave and weighty analysis and not simply rely on the best interests of the child factors in Minn. Stat. 518.17. N.A.K., 649 N.W.2d at 177. We therefore remand this opinion to the district court for further proceedings consistent with this opinion.
The district court’s order seems to imply that visitation by appellant with her child will be resumed only when M.A.L.-B.’s therapist concludes such visitation would be appropriate. The question of visitation is to be decided by the district court not by the therapist. Should the district court conclude that it would be appropriate to grant permanent custody of M.A.L.-B. to the child’s paternal grandparents, the district court shall immediately conduct a review hearing to consider issues relating to visitation by appellant with her child. The district court shall make the decision regarding the resumption of, and type of visitation, based on the evidence then before it, including evidence submitted by appellant, the child’s therapist or others.
Finally, appellant has moved for an award of attorney’s fees and to strike portions of respondent’s brief because the brief does not properly cite to the district court record as required by Minn. R. Civ. App. P. 128.03. Review of this matter was certainly not aided by the lack of citation in respondent’s brief, but the brief is properly responsive to arguments raised in appellant’s brief. The motion to strike and request for fees are denied.
 Grandparents and father both testified that appellant had lived in squalid conditions, including several locations allegedly littered with trash and liquor bottles. The record also contains allegations that appellant lived with several drug dealers and had otherwise maintained inappropriate housing arrangements. Appellant denies these allegations and produced witnesses that contradicted these accounts.
 Although appellant’s G.P.A. was 1.84 at the time of trial and she had to withdraw from several classes while preparing for trial, the two previous terms she earned a 2.93 and 2.71 G.P.A. respectively.
 The trial testimony of appellant’s parenting instructor and a public health nurse was contradicted by the guardian ad litem (GAL) who testified that appellant neglected her toddler daughter, let her play unattended by an apartment stairway, and ineffectively interacted with M.A.L.-B. But this testimony does not reflect recent events because appellant prohibited the GAL from any contact over two years ago.
 Among other things, appellant was alleged to have kicked M.A.L.-B. in the stomach during a visit. Grandfather testified that he went to the police to complain about physical abuse but was turned away. Appellant’s personality was also at issue during trial. Several witnesses testified that she was combative, prone to fits of explosive rage, and a compulsive liar, even to the point of appearing delusional. Conversely, others testified that while she had problems with stress and management in the past, although not near the levels alleged, with the help of therapy, classes, and medication, she had substantially improved.
 In its exhaustive order the district court clearly erred in reaching some findings not supported by the record. For example, in its findings the district court found that appellant was not involved in counseling in a meaningful way because she refused to take a prescribed anti-depressant due to the side effects she suffered. While this finding is technically correct, it does not present the complete picture of appellant’s willingness to comply with her mental health treatment plan. Appellant and her therapist discussed the pros and cons of continuing on the medication, and her therapist concluded that appellant is doing well without Prozac. Instead appellant decided to switch to a different medication which her therapist agrees has been more successful. Most importantly, her therapist reports that appellant has worked very hard in therapy and has made “substantial” personal progress. Likewise, citing her cumulative G.P.A. of 1.84, and recent withdrawal from many of her classes, the district court found that appellant was not academically “involved in a stable and meaningful way.” This finding seems to disregard the undisputed testimony that appellant was working very hard in school. Further, her academic record in the two terms before the trial showed marked improvement, with grade point averages of 2.93 and 2.71, respectively.