This opinion will be unpublished and

may not be cited except as provided by

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







Carl Edward Mellum, petitioner,


Polly Zins,


Filed April 15, 2003


Wright, Judge


Hennepin County District Court

File No. 247851



Linda Allen, Daniel R. Butler & Associates, P.A., 2330 U.S. Bank Center, 101 Fifth Street East, St. Paul, MN  55101 (for appellant)


Kay Nord Hunt, Marc Johannsen, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondent)


            Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




In this appeal from the termination of stepfather’s visitation rights, appellant argues that the district court erred by (1) applying Minn. Stat. § 257.022, subd. 2b (2000) (establishing visitation rights of nonparents), rather than Minn. Stat. § 518.175 (2000) (establishing visitation rights of noncustodial parents) and (2) failing to recognize appellant’s common-law right to visitation arising from his in loco parentis status.   Appellant also argues that the district court abused its discretion in declining to hold an evidentiary hearing and appoint a guardian ad litem.  We affirm. 


When appellant-stepfather Carl Mellum married respondent-mother Polly Zins on September 14, 1990, mother’s daughter, J.Z., was three years old.  Although stepfather is not J.Z.’s biological parent, for approximately seven years, he lived in the same household with J.Z. and was her only father figure during that period.  But stepfather did not legally adopt J.Z.  When mother and stepfather dissolved their marriage in June 1995, mother was awarded sole legal and physical custody of J.Z.  Stepfather was not ordered to pay, and has not paid, any child support.  Throughout J.Z.’s life, child support for J.Z. has been paid by her biological father, whom J.Z. did not meet until 1998.

            After the dissolution, mother did not initially object to contact between J.Z. and stepfather.  Later, because of escalating problems between the parties and mother’s concern that stepfather was having a negative influence on J.Z.’s relationship with her, mother limited the contact between J.Z. and stepfather.  In response, stepfather petitioned the district court on April 21, 1999, for reasonable visitation with J.Z.  Mother agreed to a temporary visitation schedule for stepfather and J.Z., which the court approved pending the completion of a private visitation evaluation in March 2000. 

            The visitation evaluator reported that J.Z. had emotional ties to her stepfather and expressed an interest in seeing him.  At the same time, J.Z. expressed concern over the fights between her mother and stepfather and wanted the visitation schedule to be written “in stone” to eliminate the need for communication between her mother and stepfather.  J.Z. agreed with the existing schedule of one weekend per month, which remained in effect after the visitation evaluation.

            In April 2001, mother moved to suspend visitation between J.Z. and stepfather, citing continued strain in her relationship with J.Z. resulting from stepfather’s negative influence.  In its July 11, 2001, order, the district court found that the existing visitation arrangement was not “in the child’s best interests” and was “in fact, an endangerment to her.”  The court further stated that

[i]t is apparent that [stepfather] is unable to distinguish his own needs and desires from the child’s and that it will be very difficult for him to acknowledge any positive relationship she may develop with her biological father and/or her mother’s husband. 


Nevertheless, the court considered J.Z.’s preference to spend some time with stepfather and established strictly drawn parameters for visitation:

[Stepfather] shall have [J.Z.] for the 2nd weekend of each month, commencing August 2001.  The weekend shall be from Friday at 3:30 p.m. to Sunday evening at the time the child has historically been returned * * * .


Commencing the week of July 16, 2001, [stepfather] shall have the child one evening per week from 5:00 p.m. to 7:30 p.m. 


The district court conditioned stepfather’s right to visitation on stepfather not interfering with J.Z.’s relationship with her biological parents. 

On October 31, 2001, a mid-week visitation day in which stepfather ordinarily picked up J.Z. after her church activity at 5:00 p.m., stepfather picked up J.Z. after school.  According to stepfather, J.Z. called him after school and asked to be picked up because her church activity had been canceled.  Stepfather did not verify this information with the church or mother.  Mother became concerned when she learned that J.Z. had not attended her church activity that day.  When she called stepfather to determine J.Z.’s whereabouts, stepfather refused to talk with mother.  Instead he reported mother to the police, claiming that she had been harassing him on the telephone.  Stepfather finally returned J.Z. to mother’s house at 9:45 p.m., more than two hours later than the court-ordered visitation schedule required.

Following this incident, mother petitioned to suspend stepfather’s visitation due to his violation of the district court’s order.  The district court held a telephonic hearing with mother and stepfather on November 16, 2001.  Stepfather admitted violating the order by picking up and dropping off J.Z. outside the permitted times.  But he alleged that he did so at J.Z.’s request.  The district court temporarily suspended visitation and set a hearing on mother’s petition.

Following the hearing on mother’s petition, of which there is no record, the district court granted mother’s petition and suspended stepfather’s visitation rights.  The district court determined that stepfather was granted visitation pursuant to Minn. Stat. § 257.022, subd. 2b (2000).  The district court ruled that, when stepfather extended visitation beyond the permitted hours, failed to take J.Z. to her pre-scheduled church activity, and failed to communicate with mother about the incident, he violated the visitation order.  Finding that stepfather’s visitation was granted under the statutory provisions for nonparents, Minn. Stat. § 257.022, subd. 2b, the district court concluded that stepfather did not have the rights of a noncustodial parent to seek relief under Minn. Stat. § 518.175 (2000) and rejected stepfather’s request for appointment of a guardian ad litem and compensatory time.  Concluding that it was not in J.Z.’s best interests to have visitation with stepfather, the district court terminated stepfather’s visitation rights.  This appeal followed. 




 “The court’s ‘paramount commitment’ in all matters involving court-established relationships of a child is the best interests of the child.”  LaChapelle v. Mitten, 607 N.W.2d 151, 158 (Minn. App. 2000) (quoting Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995)), review denied (Minn. May 16, 2000).  The district court has broad discretion in deciding visitation questions and will not be reversed absent an abuse of discretion.  Foster v. Brooks, 546 N.W.2d 52, 54 (Minn. App. 1996).  We will not reverse the district court’s findings of fact unless they are clearly erroneous.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999).  However, we review de novo the district court’s determination of a legal issue.  Frost-Benco Elec. Ass’n v. State Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).   Determining the proper statutory standard to apply is a question of law subject to de novo review.  Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993). 


A stepparent may seek visitation under Minn. Stat. § 257.022, subd. 2b (2000),[1] which provides that

[i]f an unmarried minor has resided in a household with a person, other than a foster parent, for two years or more and no longer resides with the person, the person may petition the district court for an order granting the person reasonable visitation rights to the child during the child’s minority. The court shall grant the petition if it finds that:

(1) visitation rights would be in the best interests of the child;

(2) the petitioner and child had established emotional ties creating a parent and child relationship; and

(3) visitation rights would not interfere with the relationship between the custodial parent and the child.

The court shall consider the reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference.


But section 257.022 is not the only legal avenue for a stepparent to seek visitation.  A stepparent may also seek visitation under Minn. Stat. § 518.156, subd. 1(b) (2000) (permitting persons other than parent to seek custody of a child) [2] as long as the nonparent qualifies under Minn. Stat. § 257.022, subd. 2b (establishing prerequisites for nonparents seeking visitation).  Moreover, in Simmons v. Simmons, 486 N.W.2d 788, 792 (Minn. App. 1992), we determined that a stepparent may seek visitation under the common-law doctrine of in loco parentis.[3]     

Stepfather argues that the district court erroneously restricted this matter to Minn. Stat. § 257.022, subd. 2b.  He asserts that, because Minn. Stat. § 257.022 does not establish a procedure for terminating or modifying visitation, the district court’s analysis is governed by Minn. Stat. § 518.175, subd. 5 (2000), which governs modification of visitation for a noncustodial parent.  Because stepfather has a limited right to visitation that is inherently different from a parent’s right to visitation, we disagree.

A parent’s right to visitation is “essential to the continuance and maintenance of a child-to-parent relationship.”  Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).  This right exists without a specific grant by the courts.  Strenuously protected, a parent’s right to visitation may be restricted only upon a showing that (1) visitation is not in the best interests of the child (for insubstantial restriction in visitation) or (2) visitation would endanger the child’s physical or emotional health (for substantial restriction).  See Minn. Stat. § 518.175, subds. 5, 5(1); see also Anderson, 510 N.W.2d at 4. 

Unlike a parent’s right to visitation, stepfather’s visitation right arises only if all three statutory factors in Minn. Stat. § 257.022, subd. 2b, are met.  See Kulla v. McNulty, 472 N.W.2d 175, 181-82 (Minn. App. 1991) (holding that but for legislative enactment of Minn. Stat. § 257.022, subd. 2b, nonparent would have no rights to visitation whatsoever and treating all elements of Minn. Stat. § 257.022, subd. 2b, as prerequisites for nonparent visitations), review denied (Minn. Aug. 29, 1991).  While Minn. Stat. § 257.022 only lists factors necessary to grant nonparent visitation and is silent with respect to its termination, logic dictates that when a nonparent no longer meets the threshold statutory requirements for visitation, visitation must be terminated.  In Foster v. Brooks, we held that the district court did not abuse its discretion when it modified grandparent visitation, making it minimal in scope, based on the consideration of the factors in Minn. Stat. § 257.022, subd. 2, rather than Minn. Stat. § 518.175, subds. 1-5 (2000).  Foster, 546 N.W.2d at 54-55 (holding that relevant factors for grandparent visitation were considered where district court found grandmother’s derogatory remarks regarding custodial parent were not in the best interests of the child).  In reaching this conclusion, we noted that subdivisions 1 through 5 of section 518.175 “clearly address visitation by noncustodial parents” apart from the specific provision addressing grandparent visitation.[4]  Id. at 54 (stating that “[s]pecific provisions of an act prevail over prior, general provisions.” (citation omitted)). 

While no specific provision in Minn. Stat. § 518.175 (2000) addresses stepparent visitation, we conclude that stepparent visitation is analogous to grandparent visitation based on the provisions of Minn. Stat. § 518.156, subd. 1(b) (permitting persons other than parent to seek custody upon meeting the prerequisites of Minn. Stat. § 257.022) and Minn. Stat. § 257.022 (establishing those prerequisites).  Because stepparent visitation, like grandparent visitation, is unavailable without satisfying the requirements in Minn. Stat. § 257.022, a court must first consider these requirements in proceedings to modify or terminate stepparent visitation. 

Initially, the district court awarded visitation to stepfather based on the parties’ agreement.  Later, when mother sought to curtail stepfather’s visitation due to stepfather’s interference with the relationship between her and J.Z., the district court considered J.Z.’s preference and awarded stepfather visitation on a limited and conditional basis.  The district court specifically found that it was in J.Z.’s best interests to have a “limited and strictly-drawn access schedule” with stepfather.  In addition, the district court ruled that

[stepfather’s] contacts with [J.Z.] are conditioned upon him not seeking to expand these contacts through the child and/or [mother] and is further conditioned upon him not speaking negatively to the child about [mother], [mother’s] husband, or [J.Z.’s] biological father.


Thus, when mother brought a motion to terminate stepfather’s visitation based on his continued interference with her custodial relationship with J.Z., the district court properly considered factors enumerated in Minn. Stat. § 257.022, subd. 2b, to determine whether stepfather still qualifies for visitation rights.

After a hearing, the district court specifically determined that stepfather interfered with the relationship between J.Z. and mother.  See Minn. Stat. § 257.022, subd. 4 (proof by preponderance of the evidence of nonparent’s interference with parent-child relationship precludes grant of visitation rights to nonparent).  The district court further found that stepfather violated the visitation order by preventing contact between mother and J.Z. while J.Z. was at his house and by letting J.Z. know that he was willing to subvert mother’s and the district court’s determination of what was in her best interests.  From our review, we conclude that the record supports the district court’s ultimate conclusion that stepfather’s visitation rights should be terminated.  Stepfather’s actions disqualify him from a right to visitation, because, by interfering with J.Z.’s relationship with her biological parents, stepfather did not act in what is presumed to be J.Z.’s best interests.  Minn. Stat. § 257.022, subd. 2b. 

Stepfather argues that the district court erred by failing to make particularized findings regarding J.Z.’s best interests.  The supreme court has held that nonparent visitation is “a less critical decision” than custody and does not demand “the same level of factfinding required in custody determinations.”  Olson, 534 N.W.2d at 550 n.5 (considering grandparent visitation).  Under the circumstances of this case, we conclude that the district court did not err in terminating stepfather’s visitation without addressing each best-interests factor set forth in Minn. Stat. § 518.17, subd. 1 (2000).  See Foster, 546 N.W.2d at 54-55 (concluding that factors appropriate for modification of grandparent visitation considered where district court found derogatory remarks about custodial parent caused stress in child and child’s best interests warranted visitation to be minimal in scope).  The district court made sufficient findings as to the best-interests-of-the-child factors when it determined that stepfather’s interference with the custodial rights of mother and his violation of the district court’s order granting him a conditional and limited right to visitation, which was founded on J.Z.’s best interests, warrant termination of visitation. 

            Stepfather also contends that, even if he is denied visitation under Minn. Stat.       § 257.022, he can still pursue visitation under the common-law doctrine of in loco parentis.  But there is no indication in the record that this issue was raised before the district court.  Moreover, stepfather did not assert that he made such an argument in his statement of the proceedings, which he filed pursuant to Minn. R. Civ. App. P. 110.03 (allowing appellants to file statement of proceedings based on recollection and other available means when no transcript is available).  This court will not consider new arguments or new theories raised for the first time on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts generally only address issues and theories presented in district court).   


            Stepfather next argues that the district court abused its discretion by denying his request for a guardian ad litem and by suspending his visitation rights without an evidentiary hearing under chapter 518.  Because a stepparent’s right to seek visitation under Minn. Stat. § 518.156 is conditioned on qualifying under Minn. Stat. § 257.022, chapter 518’s procedural protections are unavailable to a stepparent who fails to meet those threshold requirements under section 257.022.  Here, the district court correctly determined that stepfather’s failure to meet the requirements of Minn. Stat. § 257.022 precludes him from enjoying the same procedural protections as a parent. 

Moreover, we have found that a stepparent with in loco parentis status is not entitled to the procedural protections under Minn. Stat. § 518.17 (custody provisions), because they apply only to the child’s parent or a nonparent custodian.  Simmons, 486 N.W.2d at 792.  This reasoning applies with equal force to the provisions of Minn. Stat. §§ 518.165 (2000) (appointment of guardian ad litem in proceedings for child custody); 518.167 (court-ordered evaluation in contested custody proceedings), and 518.175, subd. 5 (modification of noncustodial-parent visitation).  The procedural rights that stepfather seeks apply to J.Z.’s parents and not to stepfather.[5]

            Because stepfather was granted a limited and conditional right to visitation with J.Z., we find that the district court did not abuse its discretion by terminating stepfather’s visitation based on the finding that visitation was not in J.Z.’s best interests after stepfather specifically violated the court order granting his visitation rights and interfered with J.Z.’s relationship with her custodial parent.


[1] In 2002, Minn. Stat. § 257.022 was renumbered as Minn. Stat. § 257C.08.  Although this court typically applies the law in effect at the time of decision, McClelland v. McClelland, 393 N.W.2d 224, 226-27 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986), because Minn. Stat. § 257.022 (2000) was renumbered and because Minn. Stat. § 518.156 (2000) was substantively amended in 2002, see infra note 2, we will examine the earlier version of these statutes.  For the sake of consistency, we will analyze the remainder of the statutory law applied in this decision as it existed in the 2000 version of the statute.

[2] As amended in 2002, Minn. Stat. § 518.156 no longer explicitly refers to a person other than a parent seeking custody or visitation.  It does not allow intervention of “interested parties.”

[3] Citing London Guar. & Accident Co. v. Smith, 242 Minn. 211, 217, 64 N.W.2d 781, 785 (1954), where an unemancipated minor was barred from maintaining an ordinary negligence action against a stepparent who stood in loco parentis, the Simmons court relied on the supreme court’s recognition of the in loco parentis common-law doctrine.  Simmons, 486 N.W.2d at 790-91.

[4] Minn. Stat. § 518.175, subd. 7 (2000) provides that “the court may make an order granting visitation rights to grandparents under section 257.022, subdivision 2.” 

[5] Even if chapter 518’s procedural protections were available to stepfather, he would not be entitled to the relief sought.  First, stepfather did not request an evidentiary hearing.  Second, a request for an evidentiary hearing is granted in visitation matters when a custodial parent makes specific allegations that visitation placed the custodial parent or child in danger or harm, which was not alleged here.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  In addition, the parties submitted a plethora of affidavits describing the circumstances and events surrounding this visitation dispute.  But stepfather did not dispute the events leading to mother’s motion to terminate his visitation rights.  As to the appointment of a guardian ad litem, such appointment is not mandated, because this case did not allege child abuse or neglect.  Minn. Stat. § 518.165, subd. 2.  In the absence of allegations of abuse or neglect, the decision to appoint a guardian ad litem under section 518.165, subd. 2, is within the district court’s discretion, which was appropriately exercised where J.Z. had made known to the court her wish for a strictly drawn visitation schedule with stepfather.  See Abbott v. Abbott, 481 N.W.2d 864, 870 (Minn. App. 1992) (no abuse of discretion where children made their wishes known to court).