This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994)

                          State of Minnesota
                            in Court of Appeals

     Roger E. Gilbert,


Jane A. Gilbert,

n/k/a Jane A. Fox,

Filed October 15, 1996
Harten, Judge

Clearwater County District Court

File No. F1-95-180

Patti J. Jensen, Lindquist & Jeffrey, P.A., 124 Demers Avenue NW, 306
American Federal Bldg., East Grand Forks, MN 56721 (for Appellant)

James C. Fischer, Cannon, Kunz & Fischer Law Office, P.O. Box 480,
Mahnomen, MN 56557 (for Respondent)

Considered and decided by Harten, Presiding Judge, Crippen, Judge, and
Thoreen, Judge.(1)
        [Footnote] (1)Retired judge of the district court,
        serving as judge of the Minnesota Court of Appeals
        by appointment pursuant to Minn. Const. art. VI,
        § 10.
                        Unpublished Opinion

HARTEN, Judge (Hon. Terence C. Holter, District Court Trial Judge)

Appellant-father challenges the district court's denial of his motion to
modify custody. We affirm.

The judgment dissolving the marriage of appellant-father Roger E. Gilbert
and respondent-mother Jane A. Gilbert n/k/a Jane A. Fox, awarded the
parties joint legal custody of their three minor children with physical
custody of the daughter awarded to mother and that of the sons awarded to
father. In early 1995, father took the children to a North Dakota counselor
who reported to a North Dakota social service agency that the children
might be abused and neglected. The agency found probable cause to support
the counselor's suspicions; father thereupon moved a North Dakota court for
sole custody of the children. That court dismissed the action, finding that
North Dakota was not a convenient forum. Father then brought the instant
custody motion in Minnesota, claiming that mother neglected daughter and
that daughter was abused by mother's husband and two of mother's brothers,
one of whom lived with mother. After a hearing, the district court denied
father's motion, finding that mother's brother no longer lived with mother
and that there was no current endangerment. Father appeals.

Our review of custody decisions is limited to whether the district court
abused its discretion by making findings unsupported by the evidence or by
improperly applying the law. In re Welfare of H.M.S., 541 N.W.2d
301, 303 (Minn. 1995). The relevant part of the custody modification
statute precludes modification unless the child's present environment
endangers the child. Minn. Stat. § 518.18(d) (iii) (Supp. 1995). Father
claims that the district court erred by not finding daughter to be
endangered in mother's custody. We will not reverse a district court's
finding of fact unless it is clearly erroneous. Minn. R. Civ. P. 52.01. In
determining whether a district court's finding is clearly erroneous, we
view the record in the light most favorable to the district court's
finding. Johnson v. Smith, 374 N.W.2d 317, 319 (Minn. App. 1985),
review denied (Minn. Nov. 18, 1985).

Mother's brother, whose abuse of daughter was a basis for much of father's
claim that daughter was endangered in mother's custody, was removed from
mother's home the day father served process on mother in this proceeding;
he was not a part of daughter's environment while father's motion was
pending. Father notes that mother admitted that she was aware of the
children's problems with her brothers by late 1994, but that she did not
remove the resident brother from her house until March 1995. Father claims
that endangerment was shown because mother had ``full knowledge'' of the
abuse but allowed it to continue. He also challenges the district court's

finding that mother's failure to react more quickly was ``understandable''
due to the illness of mother's father.

Mother's father was dying and mother was, understandably, spending a
significant amount of time with him. The record supports the district court
findings that the brother who did not live with mother was not present with
the children often and that ``when [mother] recognized [her other brother
as a] threat to her children, she removed the threat.'' Mother testified
that, after hearing about the children's problems with the resident
brother, she told him ``[n]ot to be pushing the kids or rough housing them
around'' but that ``it didn't seem so bad at the time[.]'' She also stated
that she avoided having her brothers baby-sit the children and thought the
problem had been resolved. Thus, while mother may have become aware, in
November or December 1994, that the resident brother was a problem, she
apparently did not realize the extent of the problem until father served
his motion on her; thereafter, mother had that brother out of her home in
less than 24 hours.(1)
        [Footnote] (1)Father also alleges ``potential sexual
        contact'' of daughter by mother's brother. Because,
        even after the hearing, father admits that the
        sexual contact is only ``potential,'' he has not
        shown that the alleged contact occurred. See
        Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471,
        472 (Minn. 1981) (in custody modification
        proceeding, moving party must show change of
        circumstances endangering child).

Father also claims that the abuse by mother's brothers, when combined with
other circumstances, shows endangerment. Father asserts that daughter
witnessed domestic violence between mother and her husband and that those
observations caused daughter to be violent. Mother testified, however, that
only the sons witnessed the incident. Even if daughter did see it, that
fact would not necessarily require that she be removed from mother's
custody. See generally Uhl v. Uhl, 413 N.W.2d 213 (Minn. App. 1987)
(affirming award of custody of abused child to parent who abused the
        [Footnote] (2)Part of father's brief functionally
        argues that daughter's alleged observation of the
        domestic dispute is endangerment per se. The cases
        father cites to support this claim are foreign or
        distinguishable, or both.

The guardian ad litem explained daughter's violence, testifying that he and
the people with whom he spoke at the children's schools concluded that the
children were under ``a lot of stress'' because they were aware of the
implications of father's motion and that, as the hearing date approached,
daughter ``acted out.''

Citing daughter's illnesses, father claims daughter does not practice
proper hygiene when living with mother. The record shows that daughter
contracted several of the illnesses during outbreaks at school and that
another illness was an anticipated side effect of daughter's treatment for
strep throat. Also, because the district court questioned mother about
father's claims that daughter has a weight problem and poor bathing habits,
we conclude that the district court considered these claims in making its

Father claims that daughter was endangered because she was cared for by
mother's husband. Consistent with the testimony of mother and the guardian
ad litem, the district court found that the children's relationship with
mother's husband ``in general is a good one'' and that ``[a]pparently the
children like [him] and relate well to him.'' The district court also found
that the attempts of mother's husband to avoid police because he drives
without a driver's license were ``hardly grounds to cause a change of
custody.'' Father cites no authority that such conduct, however
disreputable, constitutes endangerment for the purpose of custody

modification. Also, the guardian ad litem testified that he was aware of
the criminal history of mother's husband, examined the offenses, discovered
that many were alcohol-related, and asked the police whether mother's
husband was dangerous; the police did not regard him as dangerous.

Father makes a general reference to ``alcohol issues.'' The district court
found that there was ``no evidence'' that mother's husband drives with the
children in the car while he is intoxicated. This is consistent with
mother's testimony that she and her husband now drink about once a month
and that she stopped letting her husband drive the children when it
``became an issue.''

Viewing the record in the light most favorable to the district court's
findings, the district court's rejection of current endangerment is not
clearly erroneous. We affirm the denial of father's motion to modify
custody. See Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn.
App. 1989) (endangerment is a ``threshold'' for custody modification).