This opinion will be unpublished and

may not be cited except as provided by

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







In re Jo Ann Witt, petitioner,





Michael Lee Witt,




Filed December 14, 2004


Toussaint, Chief Judge


Kandiyohi County District Court

File No. 34-FX-03-202



Julie Wacker Hanjani, 218 Main Street South, Hutchinson, MN 55350 (for appellant)


Ann M. Gustafson, 328 S.W. Fifth Street, P.O. Box 567, Willmar, MN 56201 (for respondent)


            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge                                                                                                              
            Appellant challenges the district court’s decision to award respondent sole legal and physical custody of the parties’ children.  Because the record supports the district court’s decision and we see no abuse of discretion, we affirm.





Physical Custody

            Appellant Jo Witt and respondent Michael Witt are the parents of two daughters, N.A, twelve, and C.L., nine.  The parties separated when the girls were ten and seven.  Both parties wanted sole physical custody.  The district court appointed a guardian ad litem (GAL) and ordered a custody evaluation.  The GAL and the custody evaluator recommended sole legal and physical custody with respondent. 

            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).  The district court’s findings of fact will be sustained unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W. 2d 705, 710 (Minn. 1985).  The law leaves scant if any room for this court to question the district court’s balancing of the 13 best-interests factors set out in Minn. Stat. §  518.17, subd. 1(a)(2002).  Vangsness v. Vangsness, 607 N.W. 2d 468, 477 (Minn. App. 2000).

            Appellant does not challenge the district court’s finding on factor one, that both parties want physical custody, on factor eleven, that the children are of northern European descent and belong to the Methodist religion, or on factor twelve, that there is no evidence of domestic abuse.  But appellant disagrees with the findings on the other ten factors.

            Factor two is  “the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.”  Minn. Stat. § 518.17, subd. 1(a)(2).  The district court found that the children were not old enough to express a preference, and that in any event, their expressions of preference were suspect.  That finding was based on the custody evaluator’s statements that she was uncomfortable with C.L.’s comments, which were “almost rote in nature and seemed rehearsed,” and with a letter N.A. had supposedly written to the GAL saying she did not want to spend more time with respondent.  When asked about the letter, N.A. could not say what was in it, and other people, including the family’s minister, reported that N.A. had said appellant made her write the letter.  The district court’s finding on this factor is not clearly erroneous.

               Factor three is “the child’s primary caretaker.”  Id., subd. 1(a)(3).  Appellant implicitly challenges the district court’s refusal to let her status as primary caretaker be dispositive of physical custody.  But “[t]he court may not use one factor to the exclusion of all others.  The primary caretaker factor may not be used as a presumption in determining the best interests of the child.”  Id., subd. 1(a).

               Factor four is “the intimacy of the relationship between each parent and the child.”  Minn. Stat. § 518.17, subd. 1(a)(2002).  Appellant challenges the district court’s finding that, while the children are bonded to both parents, the family’s pastor “reported to the custody evaluator that [appellant] appeared to treat the children more like possessions rather than children.”  But the custody evaluator’s testimony supports this finding:  “[The pastor], who’s been active with both [appellant and respondent, said] that [appellant] saw the girls as possessions. . . . [H]e said . . . that [appellant] sees these children as an extension of herself.”  This finding is not clearly erroneous.

               Factor five is “the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests.”  Id., subd. 1(a)(5). Appellant challenges the finding that she lacks a close support group.  One psychologist who evaluated appellant reported that her “support system is comprised of a close female friend and visits with her pastor. . . .”  But appellant’s own psychologist testified that these two people “ha[ve] not been as true to [appellant] as [she] thought.”  The GAL and the custody evaluator both noted that appellant has few friends, and appellant’s own testimony was that she spent “[t]he vast majority of the time” every day with her children. 

            Factor six is “the child’s adjustment to home, school, and community.”  Id., 1(a)(6).  Appellant claims the custody evaluator was biased because she emphasized respondent’s role in the children’s schooling and ignored appellant’s role.  But the custody evaluator stated only that N.A.’s teacher “has had contact with both [appellant] and [respondent] but has seen and talked with [respondent] more than [appellant.]”  This statement does not indicate bias.

            Factor seven is “the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity”; factor eight is “the permanence, as a family unit, of the existing or proposed custodial home.”  Id., subd. 1(a)(7), (8).  Appellant argues that custody with her would provide greater stability because she resides and “intends to stay” in the family home while respondent has moved twice, once when he left the home and a second time to a residence more suitable for himself and the children, which he now rents but hopes to purchase.  The district court found that, “[Appellant’s] ability to maintain [the family] residence is doubtful, given her lack of employment and reliance on credit cards” and that it is “not feasible” for her to remain in the home “unless she is gainfully employed.”  Appellant objects to this finding, but does not explain how she plans to finance staying in the family home.  The implicit finding that respondent’s living arrangements are likely to be more stable than appellant’s is not clearly erroneous.

            Factor nine is “the mental and physical health of all individuals involved. . . .”[1]  Id., subd. 1(a)(9).  Appellant asserts that the district court “emphasizes negativity as to appellant’s mental health.”  But the district court’s findings are objective and are supported by the record.  The court found that the clinical psychologist who had tested and interviewed both parties reported that appellant (1) suffers form a mild attention deficit disorder and a mild delusional disorder, manifested by her claim that she saw angels, by outright lies, and by manipulative behavior;  (2) lacks insight into her mental health issues, behaves impulsively, and fails to understand the effect of her own anger; and (3) respondent shows no evidence of neuropsychological or cognitive problems.  There is no evidence of bias in the psychologist’s testimony and report or in the district court’s findings based on them.

            Appellant relies on Meyer v. Meyer, 375 N.W.2d 820 (Minn. App. 1985) and Chambard v. Chambard, 348 N.W. 2d 821 (Minn. App. 1984), in support of her claim that she should be given physical custody despite signs of having a disorder.  Both are readily distinguishable, however.  In Meyer, the district court awarded custody to a mother whose mental illness was controllable with treatment, which she accepted, and was neither dangerous nor detrimental to the child, who wanted his custody to be with his mother.  Meyer, 375 N.W. 2d at 825-26.  In Chambard, the district court split custody of two children, giving the mother custody of the elder, who was her natural child but not the father’s and who had formed an attachment to the mother, and the father custody of the younger, who was the child of both parties and had not formed an attachment to the mother.  Chambard, 348 N.W. 2d at 823-24.  Neither case supports giving appellant custody of the parties’ children.

            Factor ten is “the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any.”  Minn. Stat. § 518.17, subd. 1(a)(10).  Appellant objects to the district court’s findings about an incident when she kept the children out of school for two days because they did not want to go and she “couldn’t bear to see them cry.”  The district court found that appellant reported to the school that the children were sick because she felt they were “emotionally sick,” and, at the end of the second day, delivered the children to respondent as if they had just returned from school.  But appellant does not refute the accuracy of these findings, and the transcript supports them.  The district court’s finding that this incident was not in the children’s best interests is not evidence of bias.

            Factor thirteen is “the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.”  Id., subd. 1(a)(13).  The district court found that appellant “interfered in and attempted to limit respondent’s contact with the children, attempted to undermine respondent’s relationship with the children and encouraged the children to view their father in [a] negative light” and provided 11 specific incidents to support that finding.  Again, appellant does not challenge the accuracy of the incidents, but claims that the district court relied excessively on the GAL, with whom appellant did not have a good relationship.[2]  But the fact that appellant did not have a good relationship with the GAL does not mean the GAL’s evidence is suspect.

            The district court’s findings on the statutory best-interest factors are not clearly erroneous and support its decision to grant respondent sole physical custody.


Legal Custody

            Again following the recommendations of the GAL and the custody evaluator, the district court awarded sole legal custody to respondent.  Appellant wanted joint legal custody.  When one party seeks joint legal custody, the district court is required to
consider the four additional factors set out in Minn. Stat. § 518.17, subd. 2 (2002).  Appellant challenges the district court’s findings on two of these factors. [3] 

               Factor (a) is “the ability of parents to cooperate in the rearing of their children.”  Id., subd. 2(a).  The district court found that [appellant] “demonstrated a consistent and willful inability to cooperate with respondent in the rearing of the parties’ children”; that [appellant] “does not believe it is necessary for her to communicate with respondent,” and that “[t]he custody evaluator noted the parties’ inability to communicate.”  The record supports this finding:  The custody evaluator reported that, at one joint meeting of herself and the parties, there was no communication between the parties and that appellant called the evaluator after the meeting to allege that respondent had been lying but that appellant had a difficult time stating this during the meeting. 

               Factor (c) is “whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing.”  Id., subd. 2 (c).  Appellant claims that the district court failed to address whether it would be detrimental for respondent to have sole legal custody.  But the district court found that:

 [I]t would not be detrimental to the children if respondent had sole authority over the children’s upbringing as respondent acknowledges the importance of [appellant’s] involvement on a regular basis in the girls’ lives and has shown a repeated ability to put his children’s interests first in spite of the conduct exhibited by [appellant] throughout the pendency of this litigation. 


               The district court appropriately found that sole legal custody with respondent would not be detrimental to the children.  The award of sole physical and sole legal custody is affirmed.


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

[1] Appellant claims that the district court considered this factor “to the exclusion of other factors,” but the district court made written findings on every factor. 

[2] In fact, the GAL reported that “[appellant] made several complaints about my work on this case to the Guardian ad Litem Coordinator.  Each of these complaints was addressed and after researching the facts each of these complaints were found to be without merit.”

[3] Appellant does not challenge the finding on Minn. Stat. §  518.17, subd. 2(b), “methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods,” that she is “very rigid,” is “not open to input from respondent . . . [or] any of the professionals involved in this case,” and “has not consistently complied with negotiated agreements” concerning the children.