This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







In re the Minor Child E.S.J.L.


M.M. et al., co-petitioners,



S.C.-M. (Deceased), Co-petitioner,




J.M.J., f/k/a J.M.L.,  




Filed January 23, 2007

Affirmed in part, reversed in part, and remanded

Randall, Judge


Ramsey County District Court

File No. F7-03-1970


John M. Jerabek, Jade K. Johnson, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN 55402 (for appellants);


Allison F. Eklund, Jacobson, Buffalo, Schoessler & Magnuson, LTD, 1360 Energy Park Drive, Suite 210, St. Paul, MN 55108 (for respondent). 


            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal from the district court’s order awarding respondent-mother sole legal and physical custody, appellants-paternal grandparents argue that (a) they had standing to seek custody after making a prima facie case that they were de facto custodians and/or interested third parties; (b) they made a prima facie case for modification of custody based on integration and endangerment; (c) they made a prima facie showing that awarding them sole physical custody is in the child’s best interest; (d) the district court should have appointed a GAL for the child; and (e) the district court should have recognized grandparents’ status as joint legal custodians.  We affirm in part, reverse in part, and remand.


This custody dispute involves the custody of minor child E.S.J.L., born June 16, 1995 to respondent-mother J.M.J., f/k/a J.M.L.  At the time of E.S.J.L.’s birth, respondent was unaware of who the father was.  Upon learning that he was the child’s father, S.C.M. became actively involved in E.S.J.L.’s life.  Paternity was established in 1997.  Appellants R.M. and M.M. are S.C.M.’s adoptive parents and E.S.J.L.’s paternal grandparents.  Appellants have been actively involved in E.S.J.L.’s life since learning of their relationship to her.

In March of 1999, at age three, E.S.J.L. began residing full-time with appellants.  This living arrangement resulted when appellants picked up E.S.J.L. from respondent’s home after appellants learned that respondent’s home was under police surveillance.  While in their care, appellants enrolled E.S.J.L. in kindergarten.  E.S.J.L. resided with appellants for more than three years when, in August of 2002, respondent abruptly removed E.S.J.L. from appellants’ care without discussion, explanation, or time to prepare E.S.J.L.

E.S.J.L. then resided with respondent for 13 months.  During the 13 months, E.S.J.L. moved three times and changed schools twice.  Appellants learned that respondent had not registered E.S.J.L. for the upcoming school year and became concerned.  In 2003, in response to their concern, appellants petitioned the court for custody.  On October 17, 2003, the parties, including appellants, respondent, and S.C.M., agreed to a custody arrangement.  The court acknowledged the stipulated agreement on October 20, 2003 (the “2003 custody order”).  The 2003 custody order provided for joint legal custody between respondent and S.C.M.  The relevant paragraphs pertaining to appellants’ rights stated as follows:

3.      Father Shares His Joint Legal Custody.  The grandparents are granted joint legal custody with the Father.  Specifically, they share an undivided interest with the father in his joint legal custody.  In the event the Father and Grandparents disagree regarding a legal custody issue, their rights would be equal, and neither the Father’s nor the Grandparents’ rights are superior to those of the other.

4.      Grandparental Legal Custody.  The grant of legal custody between the paternal grandparents and father is to facilitate the Grandparents’ ability to participate in joint legal custody decisions.

. . . .


10. Joint Physical Custody.  The Father and the Mother are granted joint physical custody, subject to the parenting time schedule below.

            . . . .


17.   Grandparental Rights.  The grandparents’ rights to an access schedule, and/or a holiday schedule shall not be specifically or separately stated herein, except as set forth herein and in the following paragraph.  The Father may choose to stay at the grandparents’ home, or leave [E.S.J.L.] in their care, as he deems necessary during his periods of custody and parenting time.


The agreement did not specifically provide appellants with any physical custody rights.  The parties agreed that during the academic year, E.S.J.L. would reside with S.C.M. from Sunday evenings until Friday afternoons.  Weekends would be spent with respondent except for one weekend a month with S.C.M.

Following the creation of the 2003 custody order, E.S.J.L. again resided with appellants.  Upon returning to appellants’ home in the fall of 2003, E.S.J.L. entered second grade.  E.S.J.L. began second grade approximately 6 months behind academically.  E.S.J.L.’s teacher noticed drastic social and emotional changes from when she had attended the school as a kindergartener.  Upon reviewing the records sent from E.S.J.L.’s first-grade school, E.S.J.L.’s second-grader teacher found that she had an excessive absentee rate while in respondent’s care.

The school worked with appellants, S.C.M., and E.S.J.L., and by the time she reached third grade, E.S.J.L. was academically caught up.  During this intense period of academic rebuilding, respondent never contacted E.S.J.L.’s teachers or showed any interest in E.S.J.L.’s education.

During February or March of 2005, respondent’s husband used excessive physical force in an attempt to discipline E.S.J.L.’s older half-brother.  Appellants, S.C.M., and E.S.J.L.’s maternal grandmother grew fearful of the situation and confronted respondent.  Respondent’s husband admitted to using a belt to discipline E.S.J.L. and her half-brother on multiple occasions.  He acknowledged that once he went too far with respondent’s eldest son because the boy, who suffered from autism and ADHD, could not distinguish right from wrong and failed to respond to other punishment.  On one occasion E.S.J.L. stated that she had a secret hiding place at respondent’s residence which she used when respondent and her husband argued and E.S.J.L. was scared.

On August 20, 2005, S.C.M. died unexpectedly in an accident.  Respondent claimed to have allowed E.S.J.L. to remain with the child’s grandparents during funeral arrangements and following S.C.M.’s burial so that E.S.J.L. could grieve with her paternal family.  However, three weeks after S.C.M.’s death, respondent felt enough time had passed for E.S.J.L. to grieve and that it was time for her to be with her mother and half siblings.  Appellants asserted that respondent’s removal of E.S.J.L. from their home was again unexpected.  Allegedly, E.S.J.L. broke down, cried, and begged not to be brought back to respondent’s, saying, “My mom doesn’t want to be with me.  She only cares about her two babies.”  Further, appellants allege that E.S.J.L. stated, “I don’t want anything to change.  I want to go to Turtle Lake School where my daddy wanted me to go.  I want to be safe.  I want things to stay the same even if my daddy isn’t here.”

During the two year period from October 2003 until September 2005, E.S.J.L. resided primarily with appellants.  Respondent saw E.S.J.L. on weekends but failed to exercise all of her weekends pursuant to the 2003 custody order.  Respondent had two more children during this two-year period and therefore appellants allege that the demands of two children under the age of two did not permit respondent to spend much time with E.S.J.L.

            By judgment entered February 22, 2006, the district court awarded respondent sole legal and physical custody.  The district court awarded appellants parenting time but denied their requests for modification of custody stating that the 2003 custody order terminated upon the death of S.C.M. and that they lacked standing as de facto custodians and interested third parties to seek custody.  This appeal followed.



Appellate review of custody determinations is limited to assessing 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); see In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002) (reciting this standard of review in a case involving removal of children from a natural parent).  A district court’s findings of fact will be sustained unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  But issues of statutory interpretation are reviewed de novo.  Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn. 2001). 

Appellants contest the district court’s finding that they lacked standing to modify child custody.  Specifically, appellants argue that the district court erred in finding that appellants do not share joint legal custody with respondent, and therefore, cannot modify the 2003 custody order, and further, that appellants failed to satisfy the statutory requirements of being either de facto custodians or interested third parties pursuant to Minnesota Statute chapter 257C.

Standing requires that a party show ‘“that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant’ and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.”’  In re Application of Crown CoCo, Inc., 458 N.W.2d 132, 135 (Minn. App. 1990) (quoting Meadowbrook Women’s Clinic, P.A. v. State of Minn., 557 F. Supp. 1172, 1174 (D. Minn. 1983)), review dismissed (Minn. Sept. 14, 1990).  The question is whether a party is entitled to bring a dispute or particular issues before the court.  Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205 (1975).  A party has standing if the party has a sufficient stake in a justiciable controversy.  State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn. 1996).

A.  2003 custody order

The first issue is the effect of S.C.M.’s death upon the 2003 custody order.  Appellants argue that the order granted them certain legal custody rights and parenting time which survived their son’s death.  Conversely, respondent argues that the custody agreement terminated upon S.C.M’s death.

The 2003 custody order was a stipulated agreement resulting from negotiations between the parties. The district court judge reviewed the parties’ agreement and acknowledged what the parties concluded would be in the best interest of E.S.J.L.  The district court did not make any findings or conclusions with regard to the 2003 custody order; instead, the court simply acknowledged the parties’ agreement.  The parties differ in their interpretations of the meaning of certain provisions in the 2003 custody order, specifically, whether appellants’ rights as legal custodians continued upon the death of S.C.M.

When there is a stipulated judgment, a court may interpret that judgment only if there is ambiguity in the judgment.  Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977).  Terms in a document are not ambiguous unless they are reasonably susceptible to more than one meaning.  Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn. App. 1985).  When determining whether terms in a stipulation judgment are clear and definite, the court gives the language used it’s plain and ordinary meaning.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998).  The determination of whether an ambiguity exists is a legal question subject to de novo review.  Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986).  Absent ambiguity, however, it is not proper for a court to interpret the meaning of a stipulated judgment.  Starr, 312 Minn. at 562-63, 251 N.W.2d at 342.  If ambiguous, the meaning of an ambiguous provision is a question of fact.  Emerick ex rel. Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996).  Generally, this court reviews a district court’s findings of fact under a clearly erroneous standard.  Minn. R. Civ. P. 52.01. 

The district court found no ambiguity, stating that “[i]t is clear from a plain language reading of the October 20, 2003 Order that [S.C.M.] and the Respondent agreed to share Joint Legal Custody.  It is also clear that [S.C.M] intended to share his rights with his parents, the [appellants] . . . .  The 2003 Order was explicit that [S.C.M.] was to share his rights with [appellants].” 

The 2003 custody order was not ambiguous.  The order granted legal custody to E.S.J.L.’s parents in a separate paragraph from the custody rights granted to appellants.  The order addresses legal custody in three separate paragraphs.  First, the order clearly confers joint legal custody between E.S.J.L.’s mother and father.  Second, in the subsequent paragraph, entitled “Father Shares His Joint Legal Custody,” the 2003 custody order specifies that E.S.J.L.’s father shares his joint legal custody with appellants.  Nowhere in this paragraph, discussing appellants’ legal custody rights, does it establish any custody relationship between appellants’ rights and respondent’s rights.  Instead, the paragraph states only that “neither the Father’s rights nor the Grandparents’ rights are superior to those of the other.”  Finally, the purpose of granting appellants’ legal custody is identified:  “to facilitate the Grandparents’ ability to participate in joint legal custody decisions.”  This third paragraph could be construed as ambiguous and susceptible to more than one meaning when read independently.  However, in light of the entire agreement, it is clear that the 2003 custody order meant for appellants to share only the legal custody rights held by S.C.M.  See Stieler v. Stieler, 244 Minn. 312, 319, 70 N.W.2d 127, 131-32 (1955) (stating that if ambiguous, the district court may interpret a judgment but, “full effect must be given to that which is necessarily implied in the judgment, as well as to that actually expressed therein.”); see also Palmi v. Palmi, 273 Minn. 97, 103, 140 N.W.2d 77, 81 (1966) (providing that upon interpreting a judgment, a district court may consider the whole record). 

It is clear from the language of the 2003 custody order that appellants’ legal custody rights were derived from S.C.M.’s rights.  The district court was correct in stating that “[appellants] do not inherit their son’s rights upon his death . . . [the] Order terminated due to the death of [S.C.M.].”[1]  Consequently, as a result of their son’s death, appellants lost their legal custody rights under the 2003 custody order and therefore lack standing under the 2003 custody order to modify custody.[2]

A.     De facto custodians

Appellants argue that they have standing to petition for legal custody as de facto custodians.  Minnesota Statute § 257C.03 (2004) governs the procedure for petitioning for child custody as a de facto custodian.  First, a petitioner seeking custody as a de facto custodian must establish a prima facie case by (1) stating and alleging that 15 listed conditions are satisfied, (2) verifying the petition, and (3) establishing by competent evidence the allegations within the petition.  Minn. Stat. § 257C.03, subd. 2.  Next, subdivision 6 requires that “[t]o establish that an individual is a de facto custodian,” an individual must both “show by clear and convincing evidence that the individual satisfies the [definition of de facto custodian]” and “prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the de facto custodian.”  Minn. Stat. § 257C.03, subd. 6(a).

            The district court found that appellant’s failed to establish a prima facie case.  Specifically, the district court found that “[t]he [appellants] are not de facto custodians because the Respondent agreed to have the minor reside with [appellants] and later revoked that consent by removing the minor from their residence.”  We agree.  The minor child predominantly resided with appellants following the 2003 custody order.  However, the majority of this time was governed by the 2003 custody order, permitting the minor to reside with appellants if so chosen by S.C.M., to which respondent consented.  Following the death of S.C.M., the 2003 custody order ceased to exist, whereby respondent consented to the minor’s continued residence with appellants for a time being, but revoked consent by removing the minor from appellants’ residence.  We conclude that appellants failed to establish a prima facie case as de facto custodians due to respondent’s consent of the minor’s residence with appellants.

B.  Interested third parties

Appellants argue that they have standing to petition for an award of legal custody as interested third parties pursuant to Minn. Stat. § 257C.03.  As stated in Lewis-Miller v. Ross, this procedure features two sets of requirements.  710 N.W.2d 565, 568 (Minn. 2006).  First, the statute states that “[a] petition for custody . . . must state and allege” that the petitioner satisfies 15 listed conditions.  Minn. Stat. § 257C.03, subd. 2(a).  This petition must be “verified by the petitioner” and its allegations must be “established by competent evidence.”  Minn. Stat. § 257C.03, subd. 2(b).  Second, subdivision 7 requires that “[t]o establish that an individual is an interested third party,” an individual must both “prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party” and “show by clear and convincing evidence” one of the following three child-endangerment factors:

(i)                the parent has abandoned, neglected, or otherwise exhibited disregard for the child’s well-being to the extent that the child will be harmed by living with the parent;

(ii)             placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both; or

(iii)           other extraordinary circumstances . . .


Minn. Stat. § 257C.03, subd. 7(a).  Dismissal of the petition is mandated if the petitioner fails to establish an endangerment factor or that placement of the child with the petitioner is in the best interest of the child.  Minn. Stat. § 257C.03, subd. 8(a).  “[A] party commencing a third-party child custody proceeding by valid petition and supporting affidavits is entitled to an evidentiary hearing when the facts alleged, if proven, would satisfy the criteria of Minn. Stat. § 257C.03, subd. 7(a).”  Lewis-Miller, 710 N.W.2d at 570.

Here, the district court stated that “[appellants] have failed to prove by clear and convincing evidence that at the time of filing this motion they were . . . interested third parties within the meaning prescribed by statute.”  In re Kayachith, interpreting Chapter 257C, supports the notion that the statute establishes one standard for allegations in the petition and a heightened standard for the ultimate burden of proof.  683 N.W.2d 325, 327-28 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).  Whether the assertions made in the petition are actually true is to be resolved at the subsequent hearing, where the district court must consider the factors set forth in Minn. Stat. § 257C.03, subd. 7(b).  Lewis-Miller v. Ross, 699 N.W.2d 9, 14 (Minn. App. 2005), affirmed by 710 N.W.2d 565 (Minn. 2006).  “Thus, although the factors are germane to the content of the petition, the ‘clear and convincing evidence’ burden of proof, by which the assertions must be proved, is not.”  Id. 

We find the district court incorrectly used the heightened burden of proof in assessing the allegations in appellants’ petition.  We reverse because appellants made personally verified allegations in their affidavits.  On remand, the district court must determine whether the allegations were established by competent evidence that, if proven, would establish child-endangerment.  Appellants have provided evidence establishing a prima facie showing that they are interested third parties, including allegations of abuse, poor living conditions, frequent housing and school relocations, excessive absentee rate from school, and respondent’s overall disinterest in E.S.J.L.’s education.

Appellants made a prima facie showing that they are interested third parties.  The issues of endangerment, integration, and an analysis of the best interests of the child should have been made.  The district court acknowledged that “[t]he [appellants] can show that the change of custody would be in the best interests of the child if they can show that since 2003 the child’s welfare has become endangered, that the child has been integrated into the [appellants’] household, or that any other grave and weighty circumstances would require a change in custody.”  In response to this statement by the district court, appellants raised these issues on appeal.  Since we find that appellants established a prima facie showing of interested third party status, we reverse for further determinations of these issues at an evidentiary hearing applying the correct standard as outlined above. 


In a contested custody matter, the district court may, in its discretion, appoint a guardian ad litem.  Minn. Stat. § 518.165, subd. 1 (2004).  The district court must appoint a guardian ad litem if “the court has reason to believe that the minor child is a victim of domestic child abuse or neglect.”  Minn. Stat. § 518.165, subd. 2 (2004).  If the allegations of abuse are insubstantial or rebutted, the court may refuse to appoint a guardian ad litem.  Abbott v. Abbott, 481 N.W.2d 864, 870 (Minn. App. 1992); Baum v. Baum, 465 N.W.2d 598, 600 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991). 

Based on this record, the district court could have appointed a guardian ad litem to provide a good neutral viewpoint.  However, given the discretion of the district court in custody matters, it was not reversible error not to do so.  On remand, the district court is free to rethink the issue of a guardian ad litem.

            Affirmed in part, reversed in part, and remanded.

[1] We reiterate the district court’s statement that appellants do not inherit their son’s legal custody rights upon his death.  Family law, and more specifically legal custody, is not analogous to property law.

[2] Respondent argues that because appellants were not adjudicated de facto custodians or interested third parties under the 2003 custody order that they cannot now retroactively make such claims.  Respondent’s argument is incorrect.  It is irrelevant to appellants’ current claim for de facto custodian or interested third party status that appellants were not previously adjudicated as such.  See Minn. Stat. § 257C.03, subd. 1 (“[A] de facto or third-party child custody proceeding may be brought by an individual other than a parent by filing a petition seeking custody”).