This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Custody of Dylan Mathew Paulson, Sandra Jean Paulson,


Tina Marie Duffy Paulson,


Filed June 17, 2003

Reversed and remanded

Minge, Judge


Dakota County District Court

File No. F2966888


Peter M. Banovetz, Aafedt, Forde, Gray & Monson, P.A., 150 South Fifth Street, Suite 3100, Minneapolis, MN 55402 (for respondent)


Chris Joel Paulson, 11817 Champlain Drive, #316, Champlain, MN 55316 (pro se respondent)


William R. Lindman, 9418 East River Road N.W., Coon Rapids, MN 55433 (for appellant)


            Considered and decided by Hudson, Presiding Judge, Toussaint, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


MINGE, Judge


            Appellant challenges the district court’s denial of an evidentiary hearing on her request for custody of her son when the denial was based on the determinations that the grandmother had permanent custody and that the appellant had not made a prima facie showing that the boy was endangered by the current living arrangement.  Because the grandmother does not have permanent custody and because the law favors custody with a natural parent, appellant should be granted an evidentiary hearing to determine whether modification of custody is appropriate.  We reverse and remand for an evidentiary hearing.



            Appellant Tina Marie Duffy is the mother of an eight-year-old boy.  Because appellant and the putative father had little money, they lived with relatives in cramped quarters.  When the child was six months old, they asked the father’s mother, respondent Sandra Paulson, to care for the child.  Since that time, the child has lived with respondent.

            Shortly after being granted custody, respondent applied for financial and health services for the child.  To qualify, she was declared the child’s legal custodian.  The order stated “[t]hat the petitioner Sandra Paulson shall have sole legal and physical custody of the minor child.”  The parents were granted reasonable visitation and the issue of child support was reserved.  This order was based on a March 12, 1996 stipulation from appellant and the father agreeing that respondent be granted sole temporary custody of the child. 

Appellant’s marriage was dissolved on November 12, 1997.  The dissolution judgment states

[t]hat paternal grandmother Sandra Paulson is the physical custodian of the parties’ minor child, * * * age 2, subject to reasonable visitation by the parties.  The parties reserve the right for either party to contest physical and legal custody issues in the Dakota County proceeding at their option.


            On May 14, 1998, appellant filed a motion requesting that the 1996 order granting respondent custody of the boy be vacated.  At that time, the court appointed a guardian ad litem (GAL) to make permanent visitation and custody recommendations and to review the previous court-ordered interim visitation schedule.  The GAL sent appellant a letter recommending supervised visitation for a certain length of time and urging that she attend a parenting class.  Appellant attended parenting classes, but the terms of her supervised visitation did not allow her to bring her son to the classes.    

After an evidentiary hearing, the court issued findings on June 25, 1999, that included recommendations from the GAL that respondent continue to have temporarylegal and physical custody of the boy and that a cooperative visitation schedule be established.  The court stated in the memorandum that evidence from respondent

demonstrated to the Court that (1) [appellant] has lived an unstable life over the past few years, (2) [appellant] has, in the past, demonstrated a significant lack of responsibility, (3) [appellant] has made a substantial effort in the recent past to become more stable and responsible in her life, and (4) there is still substantial room for improvement in [appellant’s] skills as a mother.


            On July 31, 2002, appellant filed another motion requesting custody of her son.  By this point in time, she had continuously lived in the same place for three years, completed her G.E.D., maintained employment, maintained a relationship with her boyfriend, and saw her son on a regular basis, including every weekend for between two and four months.  The court denied appellant’s motion for custody, stating that

regardless of the terminology used, Sandra Paulson has permanent custody of [the child].  He has been in her home since he was less than a year old.  Ms. Paulson has had court-ordered custody since 1996.  Judge Poch ordered custody to remain with Ms. Paulson in 1999.  This court does not believe that three years is “temporary.” 


The court went on to state that appellant was required to show that the present environment endangers the child’s physical or emotional health.  Because it found that appellant did not demonstrate that the present environment endangered the boy, the court declined to hold an evidentiary hearing. 

            Appellant filed a motion for amended findings and a new trial.  An order was issued on October 14, 2002 incorporating the August 28, 2002 order.  A change of custody was once again denied and no further hearing was granted.  Appellant challenges the district court denial of appellant’s motion for custody.



A district court has broad discretion to determine custody of 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); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  When an appellate court is determining if the findings are clearly erroneous, the court views the record in the light most favorable to the trial court’s findings.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  As a general matter, appellate courts review questions of law de novo.  Frost Benco Electric Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

This court must determine if appellant was entitled to an evidentiary hearing. To determine if appellant was entitled to an evidentiary hearing, the threshold issue of whether respondent had temporary or permanent custody of the child is critical.  A court may grant temporary custody pending final disposition of custody.  Minn. § 518.131, subd. 1 (2002).  Temporary orders are not to prejudice the rights of either party in subsequent hearings.  Minn. Stat. § 518.131, subd. 9 (2002).  We conclude if respondent had permanent custody, then it may not be modified unless appellant shows a “significant change of circumstances from the time when the original or amended custody order was issued.”  Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981).  “Moreover, the significant change of circumstances must endanger the child’s physical or emotional health or the child’s development.”  Id.  See also Minn. Stat. § 518.18(d)(iv) (2002).  We examine the history of the motions and orders related to custody of appellant’s son to determine whether respondent had permanent or temporary custody.

Initially, Christopher Paulson and appellant signed a stipulation granting respondent temporary custody.  The initial custody order did not state specifically whether that custody was temporary or permanent.  But the court did refer to the stipulation where temporary custody was granted.  When appellant and Christopher Paulson divorced, the dissolution decree also referred to the fact that respondent had custody of the child.  While the dissolution decree did not specify that the custody was temporary, it did state that “[t]he parties reserve the right for either party to contest physical and legal custody issues in the Dakota County proceeding at their option.”  These orders indicate that respondent had temporary custody, which respondent, appellant or Christopher Paulson could contest to request permanent custody.

The language in the June 1999 order when the child was nearly five years old is critical.  In that order the court stated that, based upon the recommendations of the GAL, respondent was to continue to have temporary legal and physical custody of the child for the immediate future.  While the court’s order appointing the GAL indicated the purpose of the appointment was to make permanent physical and legal custody recommendations and some terms like the provision for summer visitation indicated an expectation of a multi-year custody arrangement, the language of the June 1999 order clearly indicates the recommendation was a continuation of temporary custody.  Because respondent had temporary custody, the endangerment standard of § 518.18(d)(iv) does not apply.  Instead, the court must next look to the doctrines controlling custody disputes between a parent and a third party. 

In a custody dispute between a parent and a third party, two basic doctrines control the decision:

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.


            * * * *


The principle that the custody of young children is ordinarily best vested in the mother, vital and established as it may be, is distinctly subordinate to the controlling principle that the overriding consideration in custody proceedings is the child’s welfare.


Wallin v. Wallin, 290 Minn. 261, 264-65, 187 N.W.2d 627, 629-30 (1971).  These principles have also been addressed in Durkin v. Hinich, where the court stated that the presumption in favor of a parent may be overturned if there are “grave and weighty” reasons to separate a child from a parent.  Durkin, 442 N.W.2d at 153 (citation omitted).  The court in Durkin also explained that it had

repeatedly held that the right of a parent to custody of their child is paramount and either parent is presumed to be a fit and suitable person to be entrusted with care of child or children born to and belonging to them.  The burden of disproving this presumption rests upon those who challenge it.


Id. at 152-53 (citation omitted). 

Respondent had the burden to disprove the presumption that appellant was entitled to custody of her child.  To do that, respondent needed to show that appellant was unfit, or that she had abandoned the child, or that extraordinary circumstances existed requiring that appellant be deprived of custody.  See id.; Wallin, 290 Minn. at 265, 187 N.W.2d at 630.  Appellant would then be able to counter respondent’s allegations with expert testimony and witnesses of her own.  In other custody cases between parents and third parties, the parties have presented expert testimony from mental health professionals, school officials, and others with specific information regarding the fitness of the parties or the extraordinary circumstances which would allow a third party to be awarded custody.  See Durkin, 442 N.W.2d at 151 (stating that three psychologists examined the child and the parties, finding that the third party was the more appropriate custodian because there was no level of attachment or bonding between the child and the parent, and custody with the parent would be detrimental and result in severe emotional and behavioral regression); Durkin v. Hinich, 431 N.W.2d 553, 555 (Minn. App. 1988) (citing testimony from psychologists that custody to the mother would result in significant harm to the child because the mother had a “borderline personality disorder” and “lacked the necessary emotional and psychological resources to enable her to function as a the primary caretaker”); Tubwon v. Weisberg, 394 N.W.2d 601, 602-04 (Minn. App. 1986) (stating that a psychologist, court service’s counselor, and school personnel found that the third party was the more appropriate custodian because the mother was unstable in her character, unable to furnish the child with the necessary care, and that the child functioned at a lower level than her intelligence would indicate because of the chaos in her life).

            Here the district court determined that because the child had been in respondent’s home, he should remain in respondent’s home.  This clearly contradicts prior decisions on how custody determinations involving third parties should be made.  See In re Custody of N.A.K., 649 N.W.2d 166, 177 (Minn. 2002) (reversing and remanding permanent custody awarded to a third party because, while the “court may ultimately conclude * * * grave and weighty reasons exist to support awarding custody * * * [the court] must do so within the principled framework set forth in our decisions”); Durkin, 442 N.W.2d at 153 (affirming custody to a third party because the child had been integrated into the third party’s home, expert testimony indicated the child was two years emotionally delayed due to parenting of her mother, no experts testified that the mother should retain custody, and experts agreed a return to her mother would be “extremely detrimental and result in severe emotional and behavioral regression”); In re Custody of N.M.O., 399 N.W.2d 700, 704-05 (Minn. App. 1987) (reversing for an evidentiary hearing to determine if the child should remain in the custody of the third party because expert testimony indicated the child should remain with the third party); Tubwon, 394 N.W.2d at 604-05 (affirming district court’s award of custody to third party after testimony of school personnel and psychologists testified that it was in the child’s best interest); In re Welfare of P.L.C., 384 N.W.2d 222 (Minn. App. 1986) (reversing award of custody to grandparents because the grandparents had not met their burden of showing grave reasons to prefer the grandparents over the father).

Clearly, if a natural parent is fit, the presumption is that it is in the best interests of the child to be raised by the parent.  Furthermore, the right to have and raise one’s own children is a fundamental right in our society and is not subject to interference except for compelling reasons.  See Durkin, 442 N.W.2d at 152-53 (finding that the right of parents to custody of their children is “paramount” (citation omitted)); see also In re Custody of N.A.K., 649 N.W.2d at 178 (Gilbert, J. and Page, J. concurring in part and dissenting in part) (stating that “[a] natural father has a fundamental liberty interest in the care, custody, and management of his child, and this interest does not evaporate simply because the natural father has not been a model parent”) (citing Stantosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1395 (1982))).  The grant of custody of a child to someone other than the natural parent should not occur except for compelling reasons, of course the best interest of a child is a compelling consideration.

This case only involves the right to a hearing; it is not a determination of custody.  If appellant does not have good parenting skills or if the need for stability in this boy’s life is great and if staying with respondent is critical to achieving that stability, or if the boy has other special needs, then it may be important to avoid changing custody and in his best interest to stay with respondent.  The standard, however, is not the child endangerment of § 518.18(d) but the 13 best-interest factors of §518.17.  We reverse for a hearing to determine the application of the 13 factors while recognizing the conflict presented by unusual circumstances in this case – the long-term, stable custody arrangement that has existed with respondent and the legal presumption that it is in a child’s best interest to be raised by a parent.


            Appellant also briefly contends that Christopher Paulson is not the father of the child and presents an affidavit from the man she claims is the father.  The determination of paternity has no bearing on whether appellant is entitled to an evidentiary hearing, and we do not address it here.

            Reversed and remanded.