This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Isaac John Carey, petitioner,
Shea Antoinette Carey,
St. Louis County District Court
File No. 69-F0-02-600406
Cheryl M. Prince, Anna C. Mickelson, Hanft, Fride, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802-2082 (for respondent)
Sally L. Tarnowski, Law Office of
Sally L. Tarnowski, LLC,
Considered and decided by Willis, Presiding Judge; Dietzen, Judge; and Ross, Judge.
This case involves a dispute between parents concerning the custody of their only minor child. Shea Carey appeals from the district court’s judgment granting Isaac Carey sole physical custody of their child and granting her limited parenting time. She argues that the district court’s findings were clearly erroneous and demonstrate bias. Because the district court’s findings have support in the record and demonstrate full consideration of the statutory factors, we affirm.
Shea and Isaac Carey were married in August 1999. They had one child, who was four years old at the time of their marriage dissolution in July 2005. The custody dispute began before the dissolution was final when the district court gave the parties temporary joint legal and physical custody of the child in an August 2002 order. This order provided for physical custody on an alternating weekly schedule.
In March 2003, the district court granted Isaac Carey an ex parte order giving him temporary sole physical custody, based in part on the recommendation of a custody evaluator. In April and May 2003, Shea Carey received and completed chemical dependency treatment. The parties later lived together and attempted to reconcile. In late May 2003, the custody evaluator stated that she planned to recommend granting Isaac Carey sole physical custody, but the parties’ reconciliation efforts suggested an end to their custody dispute.
April 2004, however, the parties had separated again and were no longer attempting
to reconcile. The district court ordered
them to continue sharing joint legal and physical custody on an alternating
weekly schedule. A month later, the
district court considered the guardian ad litem’s (GAL) recommendation to give temporary
sole physical custody to Isaac Carey after Shea Carey obtained employment that
would require her to travel to
The district court conducted a bench trial in June 2005, in which it considered the parties’ testimony, the GAL’s testimony, and the GAL’s reports, including the recommendation that custody be awarded to Isaac Carey. The court issued findings on each of the statutory best-interests factors, made conclusions, and determined that the parties should have joint legal custody. But the court determined that giving sole physical custody to Isaac Carey was in the child’s best interests. The court also set parenting time, ordering the child to reside primarily with Isaac Carey during the school year and with Shea Carey during the summer. The court denied Shea Carey’s posttrial motions and entered judgment in January 2006. Shea Carey appeals, arguing that the district court abused its discretion by giving Isaac Carey sole physical custody and by placing their child with him throughout most of the school year.
D E C I S I O N
Carey asks this court to reverse the district court’s custody decision. The district court has broad discretion to resolve
child-custody disputes. Durkin v. Hinich, 442 N.W.2d 148, 151 (
In making a custody
determination, the district court must consider the specific statutory factors enumerated
in Minn. Stat. § 518.17, subd. 1(a) (2004). It “may not use one factor to the exclusion
of all others.”
The district court made findings on each statutory best-interests factor before determining that giving sole physical custody to Isaac Carey was in the best interests of the Careys’ child. Neither Isaac nor Shea Carey sought joint custody, and the district court found that their current joint physical custody arrangement was “not working.” The court found that both parties love the child and would be good custodians, and it noted that it could not make a “bad choice in this case.” Left with the choice between two loving parents and facing circumstances in which both parties concluded that joint custody is unworkable, the court evaluated all of the statutory factors and determined that the balance tipped to Isaac Carey because he could provide the most stability for the child. See In re Weber, 653 N.W.2d 804, 811 (Minn. App. 2002) (stating that law presumes that stable environment is in child’s best interests).
Shea Carey argues that the district court based its custody decision on one factor by considering only the level of stability each parent could provide. In support of her argument, she contends that the following findings were erroneous: (1) that the child lived in Isaac Carey’s home since the child was one; (2) that her intention to move to Iowa affects the stability that she can provide and is in contrast to Isaac Carey’s ability to provide stability in Duluth; (3) that the child has a stronger relationship with the paternal grandparents than the maternal grandparents; and (4) that instability may have caused the child’s delayed development. She further contends that the district court demonstrated bias based on its findings regarding her work history and that the court failed to consider Isaac Carey’s work schedule. We find that the record supports the district court’s findings and that Shea Carey’s additional arguments lack merit.
Carey correctly notes that it would be erroneous to give one parent physical
custody “solely because [the parent] is able to continue working and residing
on the family [homestead].” Smith v. Smith, 425 N.W.2d 854, 857 (
court acknowledged that Shea Carey had recently taken steps to make a home and
maintain employment in Duluth, but it contrasted these steps with her plan to
move to Iowa one year before trial and her residence in the Twin Cities area six
months before the trial. When the child
was in her custody, she has resided in
district court also considered the extended family and support systems
available to the parents and their child.
It concluded that the child had spent more time and had developed a
stronger relationship with her paternal grandparents in
Shea Carey also challenges the district court’s finding that the weekly alternating custody and the instability of her residence were negatively affecting the child’s development. The court found that the lack of routine and stability “possibly resulted in delayed development.” The GAL, who has training in child development, had concerns about the child’s speech and hearing and toilet training. Shea Carey’s argument that there was “no medical evidence that the child is delayed in any way” may be accurate, but it is countered by the record, which shows that the GAL identified speech difficulties and noted that the child was not toilet-trained at more than four years old. The district court’s finding that instability and impermanence could “possibly” affect the child’s development therefore is not clearly erroneous.
Carey next contends that the court used her testimony that she formerly worked
as a stripper against her. She alleges bias,
citing one finding by the court that she traveled to
Shea Carey complains that Isaac Carey should not have custody because he is out of town six months of the year. This complaint is unpersuasive for three reasons. First, the record does not establish that Isaac Carey works out of town for six months. But the record supports the court’s finding that, during “summer peak season,” Isaac Carey works out of town on weekdays and that from November to April he does not work. Second, Isaac Carey’s employment is only one factor among several considered by the district court to support the custody arrangement. Third, the court was guided by the child’s school schedule in defining an appropriate parenting plan.
The evidence in the record, which we do not reweigh on appeal, supports the district court’s findings and its determination to give Isaac Carey sole physical custody. The court reached its custody determination after considering all of the statutory best-interests factors.
also challenges the district court’s parenting-time decision. When requested by a parent, the district
court must grant parenting time to ‘enable the child and the parent to maintain
a child to parent relationship that will be in the best interests of the
Carey’s primary contention is that she should have received more time with the
child during May, September, and October, when Isaac Carey is working away from
Shea Carey argues that the district court improperly imposed a geographic
restriction on her parenting time.
Without citing legal authority, she argues that it is clear error for
the court to order the child to remain in the