This opinion will be unpublished and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:  D.M.P.


Sandra Jean Paulson,





Chris Joel Paulson,



Tina Marie Duffy Paulson,



Filed September 21, 2004

Reversed and remanded

Hudson, Judge


Dakota County District Court

File No. F2-96-6888


Peter M. Banovetz, Aafedt, Forde, Gray, Monson & Hager, P.A., 150 South Fifth Street, Suite 3100, Minneapolis, Minnesota 55402-2424 (for appellant)


William R. Lindman, William R. Lindman, P.A., 9418 East River Road Northwest, Coon Rapids, Minnesota 55433 (for respondent)


            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal challenging the district court’s determination in a third-party custody dispute, grandmother Sandra Paulson contends that the district court erred by granting mother Tina Marie Duffy sole custody of D.M.P.  The district court determined that while the 13 best-interests factors favored Paulson, she failed to rebut the presumption favoring the natural parent, and therefore, it is in the best interests of the child for Duffy to have sole custody of him.  Because we conclude that the district court abused its discretion in failing to weigh the best-interests factors in light of the demonstrated extraordinary circumstances, we reverse and remand.


Respondent Tina Marie Duffy is the mother of a nine-year-old boy, D.M.P.  When the child was six months old, Duffy and the father, Chris Paulson, asked Chris Paulson’s mother, appellant Sandra Paulson (Paulson), to care for the child.  Since that time, the child has lived with Paulson.  In 1996, Paulson was granted temporary custody of D.M.P.  On May 14, 1998, Duffy filed a motion requesting vacation of the 1996 order granting Paulson custody of the boy.  After an evidentiary hearing, the court issued findings on June 25, 1999, denying Duffy’s motion but including recommendations from the guardian ad litem (GAL) that Paulson continue to have temporary legal and physical custody of the boy and that a cooperative visitation schedule be established.  On July 31, 2002, Duffy again filed a motion requesting custody of her son.  An order was issued on October 14, 2002, denying a change of custody, and no further hearing was granted. 

Duffy challenged the district court’s denial of her 2002 motion requesting custody in an appeal to this court.  On June 17, 2003, this court issued an unpublished opinion remanding this case for the district court to hold an evidentiary hearing and to apply the proper standard for determining custody in a third-party custody dispute.

            On September 25 and October 10, 2003, the district court held an evidentiary hearing on the matter.  At the hearing, rather than calling experts to testify concerning what would be in the best interests of D.M.P., Duffy and Paulson called friends and family to testify about each party’s relationship with D.M.P.  The essence of the testimony from Paulson and her witnesses was that moving D.M.P. to Duffy’s home would be devastating to D.M.P.  The essence of the testimony from Duffy and her witnesses was that the move would not be devastating and that D.M.P. enjoys being with his mother at her home.  Applying the standard for third-party custody disputes, the district court concluded that Paulson did not meet her burden of rebutting the presumption favoring the natural parent and that it was in the best interests of the minor child to have a gradual change in custody to Duffy.  The district court ordered that D.M.P. remain in Paulson’s custody through the end of the school year and begin increased visitation with Duffy.   The court ordered that at the end of the school year, Duffy be awarded permanent sole custody of D.M.P., with Paulson and Chris Paulson having visitation every other weekend.  Paulson challenges this determination, arguing that the district court misinterpreted this court’s decision and instructions on remand, and erred by awarding Duffy custody. 


This court’s review of a custody determination is limited to whether the trial 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).

Paulson does not claim that the district court’s findings are clearly erroneous and unsupported by the evidence; she argues instead that the district court misapplied the law for third-party custody determinations.  Paulson claims that this court’s initial opinion remanded this case for a custody determination based on the 13 best-interests factors and that the district court failed to give the 13-factor best-interests test the weight intended by this court.  Paulson contends that because the district court admitted that appellant wins “hands down” on a decision based solely on the 13 best-interests factors, the district court erred by granting Duffy sole custody of D.M.P.

            This court’s initial opinion outlined the law governing third-party custody disputes, explaining that two doctrines control

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.  


Paulson v. Paulson, 2003 WL 21386337, at *3 (Minn. App. June 17, 2003) (quoting Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971)).  The burden of disproving the presumption that a natural parent should have custody rests upon those who challenge it.  Durkin v. Hinich, 442 N.W.2d 148, 152‑53 (Minn. 1989).  But this presumption can be overcome if “there has been established on the [parent’s] part neglect, abandonment, incapacity, moral delinquency, instability of character or inability to furnish the child with needed care, or unless it has been established that such custody otherwise would not be in the best interest of the child.”  Wallin, 290 Minn. at 266, 187 N.W.2d at 630 (citation omitted).  This court also noted that the United States Supreme Court has held that the right to raise one’s own children is a fundamental right in our society and is not subject to interference except for compelling reasons.  Paulson, 2003 WL 21386337, at *5 (citing Durkin, 442 N.W.2d 152‑53; see also Santosky v. Kramer, 455 U.S. 745, 753 (1982) (noting a natural father’s fundamental interest in custody of his child)).

            Based on these principles, this court instructed that:

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. 


Paulson, 2003 WL 21386337, at *5 (emphasis added).

            On remand at the evidentiary hearing on D.M.P.’s best interests, the district court found that the statutory 13-factor analysis “weighs heavily in [the grandmother’s] favor.”  See Minn. Stat. § 518.17, subd. 1(a) (2002) (listing factors that must be considered in determining a child’s best interests).  But the court concluded that the case law governing third-party custody cases and the court of appeals decision remanding the case also made it clear that it was appellant’s burden to show that there was some reason that Duffy is unfit or that it is not in the best interests of D.M.P. to be raised by his natural parent.  The district court concluded that Paulson failed to meet her burden of proof.  Thus, applying the 13 best-interests factors in light of the presumption favoring Duffy as the natural parent, the court concluded that D.M.P.’s gradual transfer of custody to Duffy is in his best interests. 

            We acknowledge that the district court thoughtfully applied the statutory 13 best-interests factors as this court instructed on remand.  Further, our review of the hearing transcript convinces us that the district court correctly recognized that under Wallin and this court’s previous opinion in this case, in order to rebut the presumption in favor of the natural parent, Paulson had to show that Duffy was unfit, or that she abandoned the child, or that extraordinary circumstances existed.  But the record also shows that the district court ultimately focused almost entirely on the “fitness” element of this test and that it believed Paulson could not meet her burden unless she showed that Duffy was unfit.  Thus, the district court repeatedly told Paulson’s counsel that no evidence had been presented suggesting that Duffy was unfit.  Significantly, it does not appear from the record that the district court considered—as a distinct element or criterion separate from Duffy’s fitness—whether any extraordinary circumstances existed.  The district court erred in failing to do so.  Thus, given (1) the extraordinary circumstances presented here—namely the eight-and-one-half years that D.M.P. has resided and flourished in Paulson’s home; and (2) the fact that the district court found that Paulson wins “hands down” on the best-interests factors, we must conclude that the district court abused its discretion by transferring custody to D.M.P.’s mother.

In determining the custody of a child, the right of a parent is presumptively superior to a third person, but if extraordinary circumstances exist, that right “must always yield to the best interests of the child.”  In re Custody of N.A.K., 649 N.W.2d 166, 177 (Minn. 2002) (quotation omitted).  Here, nine-year-old D.M.P. was six-months old when his parents placed him in his grandmother’s care; he has remained in her continuous care since that time.  It is undisputed that D.M.P. has flourished in Paulson’s care and is a happy, well-adjusted child who has strong friendships and does well in school.

Neither party, however, presented the district court any recent expert evidence concerning the best interests of D.M.P.; a point noted by both the court and the parties’ counsel.  Duffy’s counsel indicated that it has been difficult to arrange for an independent evaluation because Duffy only has visitation with D.M.P. on the weekends.  Significantly, the record shows that Paulson repeatedly told the district court that if it were in D.M.P.’s best interests, she would voluntarily agree to the transfer of custody.  She also requested that the court appoint a guardian ad litem, update the custody study, or order a psychological evaluation of D.M.P.  The district court declined, noting the protracted nature of these proceedings and the costs to the parties of a professional evaluation.  In addition, Paulson asked the court to talk to D.M.P. in camera, and the court indicated that it was willing to do that, but D.M.P.’s mother would not agree.  In the end, the only expert evidence that was available to the district court—a 1999 guardian ad litem report, based on a court-ordered custody study and psychological report—recommended that D.M.P. remain in Paulson’s custody. 

Moreover, during the more than eight-and-one-half years that Paulson cared for  D.M.P., his mother failed to keep in contact with him for periods of time that exceeded a year.  D.M.P’s mother is making significant strides in turning her life around and becoming a responsible parent.  At the time of the evidentiary hearing, she had earned her G.E.D., maintained her current job for more than a year, and maintained her current housing for five years.  She was also visiting D.M.P. on a regular basis.  But that is not, at this point, the primary consideration.  “The weight to be given to the promise of future right treatment arising out of the blood relationship of parent and child varies according to the . . . parent’s past record of fidelity in meeting parental obligations.”  N.A.K., 649 N.W.2d at 175 (quoting In re Hohmann, 255 Minn. 165, 170, 95 N.W.2d 643, 644 (1959)).  At minimum, the promise should be subject to a best-interests analysis for the child.  The district court was clearly struggling in good faith to apply the remand instructions.  But if the judicial system elevates that struggle about D.M.P.’s best interests, we have unjustifiably let D.M.P. down. 

Because Paulson’s eight-and-one-half years of voluntary custodial care is an extraordinary circumstance and because the district court found that D.M.P’s best interests are served by his remaining in Paulson’s custody, the district court, on this record, abused its discretion by transferring custody to Duffy.  Therefore we reverse and remand for proceedings not inconsistent with this opinion.  The district court may, in its discretion, reopen the record to order or receive additional expert evidence, including but not limited to, an updated custody report, a guardian ad litem report, or a report from a court-appointed psychologist.

Reversed and remanded.