This opinion will be unpublished and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 Chase James Kirkwood:

Terrilyn Ojala, petitioner,





Gregg Kortesma,



Filed March 23, 2004


Forsberg, Judge*


St. Louis County District Court

File No. F3-01-601085


Arne D. Anderson, 333 Missabe Building, 227 West First Street, Duluth, MN  55802 (for respondent)


John T. Burns, Jr., 115 Midway Bank Building, 14300 Nicollet Court, Burnsville, MN 55306 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            A mother who had custody of her child died, and the child’s half sister, respondent Terrilyn Ojala, petitioned the district court for custody of the child.  Respondent-father Gregg Kortesma opposed the petition.  The district court awarded custody to sister, and father appealed.  Because the district court properly applied the third-party custody statute and the record supports the district court’s findings of fact, we affirm. 


            When the child of mother and father was born in 1992, father lived in Alaska.  A Wisconsin court adjudicated father to be the child’s father in 1994, after which mother retained custody of the child and father moved to California.  In May 2001, the child, with mother’s consent, moved in with sister.  Mother died in November 2001, father petitioned a Wisconsin court for custody, and sister, who lived in Minnesota, petitioned a Minnesota court for custody.  The Wisconsin court dismissed father’s petition, and father, who opposed sister’s petition for custody, said he would take the child to lunch.  Instead of returning the child, father took the child to California.  Sister then got an order from a Minnesota court awarding her temporary custody, and regained actual custody of the child.  After a two-day trial, the district court awarded custody of the child to sister by applying Minn. Stat. § 257C.03, subd. 7 (2002), and Minn. Stat. § 257C.04, subd. 1(c) (Supp. 2003).  Father sought amended findings, the district court denied the bulk of that motion, and father appeals. 



            Chapter 257C addresses when and how a nonparent who is an “interested third party” may be awarded custody of a child.  Father makes a series of unrelated challenges to the district court’s application of the relevant portions of that statute. 

            Father argues that, in awarding sister custody, the district court failed to apply the clear-and-convincing-evidence standard required by Minn. Stat. § 257C.03, subd. 7(a)(1).  See Rogers v. Moore, 603 N.W.2d 650, 657 (Minn. 1999).  The district court, however, concluded that sister “has shown by clear and convincing evidence that placement of the child with [sister] takes priority over preserving the day to day parent-child relationship because of the presence of emotional danger to the child” and that “in the alternative, [sister] has shown by clear and convincing evidence that other extraordinary circumstances exist.”  (Emphasis added.) 

Father argues that while it may have been difficult for the child to go to California, that “doesn’t mean it is not in [the child’s] best interests[,]” and that the district court failed to identify the evidence on which it relied in ruling that placement with sister took priority over the father-child relationship.  We see no ambiguity regarding the basis for the district court’s ruling.  The district court found both that awarding custody to father “would significantly endanger [the child’s] emotional health and well being” and that “[t]o allow [father] unsupervised, unlimited parenting time at this time would endanger [the child’s] emotional health.”  These findings are supported by expert testimony and associated documents in which (a) the child’s psychotherapist stated that the child has post traumatic stress disorder, that the child’s anxiety varies directly with the extent of the child’s contact with father, that the child says “I hate myself” and writes “I hate myself” on his body, that the child has many dissociative behaviors, that dissociative behaviors are involved in self-harming activities, and that this child is “at high risk for, at least, self-harming behaviors, if not suicide” if he goes to California with father; (b) the guardian ad litem stated that nothing heard at trial alters his written recommendation to award custody to sister, that the child is afraid to go to California, and that the guardian ad litem doubts father “has the ability to give [the child] the care and upbringing [the child] needs”; (c) the child’s psychological evaluation states that “a sudden move [of the child] to live with his father would be deeply traumatic for [the child]”; (d) the custody evaluation states both that the child “is already planning on how to leave his father should the decision be made for him to live [with father]” and that the child “would best be served remaining in the custody of his sister”; (e) father’s psychological evaluation notes that father’s “analytical cognitive approaches to problems” would not serve him well in dealing with the child’s psychological needs; and (f) sister’s psychological evaluation states she “does not evidence any psychological problems that would interfere with providing appropriate, adequate, and safe care for [the child].”  This record contains clear and convincing evidence that it would endanger a special-needs child who is at risk for suicide to be put in the custody of the parent who is thought to have created some of those needs, and who is thought to lack the ability to adequately care for those needs. 

            Father’s argument that the district court failed to give deference to father’s understanding of the child’s best interests or the parent-child relationship is addressed by the finding that placing the child in his custody will endanger the child. 

            Father argues that, in finding him to have caused some of the child’s special needs, the district court failed to “disregard” the mother’s problems and death, the tendency of the child to want to stay with friends in Minnesota, and the difficulties the child had before these proceedings started.  See Minn. Stat. § 257C.04, subd. 1(a)(1), (5), (10) (Supp. 2003) (referring to child’s reasonable preference, child’s relationship with persons significantly impacting his best interests, and capacity and disposition of parties to give love, affection, and guidance).  Father argues that the court’s failure to “disregard” these facts is exacerbated by the fact that the child’s psychotherapist failed to distinguish between the effect on the child of mother’s death and father’s taking of the child to California.  But the psychotherapist testified that “all of the records” showed that it was not until after father took the child to California and after the child learned that his father might get custody that the child became afraid of not being with sister and of going to California.  Thus, the psychotherapist at least implicitly distinguished the impact of mother’s death on the child from the impact of the trip to California.  Also, regardless of the cause of the child’s special needs, the record shows that sister is currently better able to tend to those needs. 

            Father argues that the district court and evaluators were hostile to father’s religious beliefs and the way that those beliefs impacted his views both on the child’s best interests and that sister should be married to the man with whom she is living.  Review of the record does not show that the district court was hostile to the religious position father asserts.  Additionally, while father argues that certain religious pamphlets mentioned by the district court were sent to sister rather than the child, the district court makes clear that the mailings forming the basis for its ruling were letters, rather than pamphlets, and that the letters were sent to the child. 

            Father challenges the finding that, despite sub-par academic performance, the child was in a stable environment.  A child’s adjustment to home, school, and community is a best-interest factor separate from the factor of the length of time a child has spent in a stable environment.  Minn. Stat. § 257C.04, subd. 1(a)(6), (7).  Therefore a child can be in a stable environment while performing only moderately well, academically. 

            Father alleges that the district court failed to acknowledge that he did not make any derogatory statements about sister’s family to the child.  Because the district court’s September 20, 2002 order forbade the parties from attempting to influence the child’s custodial choice, it seems that father is arguing that the district court should have acknowledged that he abided by a court order.  The district court did not abuse its discretion by not formally recognizing father’s abiding by the court’s order.

            Father argues that the evaluators exaggerated the child’s stress-related trauma, and misidentified its cause.  But the weight and credibility of testimony, including expert testimony, is for the factfinder to determine.  State ex rel. Trimble v. Hedman, 291 Minn. 442, 456, 192 N.W.2d 432, 440 (1971).  And here, the district court found the testimony of the child’s psychotherapist “compelling and credible” regarding child’s post traumatic stress disorder, and father and father’s conduct being its cause. 

            Father also argues that the district court’s refusal to award custody to him is based on its view that father’s religious views preclude him from being able to care for the child in light of the child’s current status as a member of an extended family involving unmarried parents.  But the most problematic aspects of the current father-child relationship are that the child has post traumatic stress disorder, that father refuses to acknowledge his contribution to causing that condition, and that father currently lacks the ability or inclination to address the child’s resulting special needs.  Thus, regardless of the district court’s view of father’s religious beliefs, father’s current inability to parent this child precludes placing custody with him at this time.

            Father also argues that his taking of the child to California was not legally inappropriate because, at that time, he was the child’s custodian.  This argument misses the point.  It was not necessarily the taking of the child to California that was inappropriate, but the manner in which father did it. 


Father argues that certain provisions of Chapter 257C are unconstitutional.  The constitutional arguments were not made to, or addressed by, the district court.  Generally, issues not presented to and considered by the district court are not addressed on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  This rule applies to constitutional questions.  See State v. Schleicher, 672 N.W.2d 550, 555 (Minn. 2003); In re C.L.L., 310 N.W.2d 555, 557 (Minn. 1981).  Therefore, we decline to address father’s constitutional arguments. 


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.