This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Dana Louise Long,



Thomas Norbert Spanier,


Filed May 27, 1997


Short, Judge

Hennepin County District Court

File No. PA27530

Nancy Murphy-Robinson, Nancy Murphy-Robinson Law Office, 1020 Southgate Office Plaza, 5001 West 80th Street, Bloomington, MN 55437 (for appellant)

John P. Guzik, Guzik Law Office, 2353 Rice Street, Suite 203, Roseville, MN 55113 (for respondent)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.


SHORT, Judge

This family law case involves the physical custody of the parties' six-year-old daughter, who was born out of wedlock. After the trial court adjudicated Thomas Norbert Spanier to be the child's father in 1993, Spanier and the child's mother, Dana Louise Long, stipulated to a decree, whereby Long obtained temporary physical custody of the daughter until such time as a permanent custody arrangement could be reached. After a failed arbitration in 1995, the matter went before the trial court. Based on analysis of the statutory "best interests" factors enumerated in Minn. Stat. § 518.17, subd. 1(a), the trial court granted permanent physical custody to Spanier during the school years and to Long during the summers. On appeal from a denial of her motion for a new trial or amended findings, Long argues the trial court: (1) abused its discretion by awarding primary physical custody to Spanier; and (2) erred in failing to make a specific finding on endangerment when determining the custody and visitation issues. We affirm.


A trial court has broad discretion to resolve custody issues. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse a trial court's custody determination absent an abuse of that discretion. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). This court sustains the trial court's findings of fact unless clearly erroneous. Minn. R. Civ. P. 52.01.

In awarding physical custody of a child, a trial court must consider numerous factors to determine the best interests of the child. See Minn. Stat. § 518.17, subd. 1(a) (1996) (listing 13 factors relevant to best interests of child). Although a court may not use the primary caretaker factor as a proxy for the best interests of a child, courts often award custody to the primary caretaker where the evidence shows that both parents are acceptable custodians and the child is too young to express a preference. See Minn. Stat. § 518.17, subd. 1(a) (proscribing use of primary caretaker factor as presumption in determining best interests); Maxfield v. Maxfield, 452 N.W.2d 219, 222 (Minn. 1990) (holding primary caretaker factor is not to be applied mechanically, but in light of all relevant statutory factors).

Long argues the trial court erred in awarding physical custody to Spanier on the basis of an unfairly biased court services report, which did not take into account Long's role as her child's primary caretaker. We disagree. The trial court made meticulously detailed findings addressing each statutory factor listed in Minn. Stat. § 518.17, subd. 1(a). Specifically, the court found that: (1) both parties sought sole physical custody of the child; (2) the child was too young to reliably express her custodial preference; (3) Long had acted as the child's primary caretaker; (4) both parents had an intimate and loving relationship with the child; (5) based on several psychological tests and reports, the child had a more positive and open relationship with her father and had formed strong relationships with her stepmother and stepbrother; (6) the child had developed strong community and friendship ties in connection with both parties' homes; (7) although Long generally had provided the child with a stable environment since the child's birth, she had exercised poor judgment in child care and was inflexible in providing Spanier access to the child; (8) both of the parties' homes offered permanency as a family unit; (9) although both parties were physically healthy, Long's psychological testing demonstrated a "highly defensive profile"; and (10) while Long testified Spanier had attempted to choke her during an argument in 1993, she offered no evidence to substantiate her claim.

In making its findings, the trial court relied in part upon a court services report submitted by a court services officer and a child psychologist who had observed each parent interacting with the child on two separate occasions. The trial court also considered a study submitted by Long's expert, Dr. M. Suzanne Wright, but noted that Dr. Wright's analysis was based solely on the child's interaction with her mother. The court ultimately awarded primary physical custody, subject to visitation, to Spanier during the school years and to Long during the summers. Viewing the evidence in a light most favorable to the trial court's determination and deferring to the trial court's opportunity to judge credibility, we cannot say the trial court abused its discretion in awarding permanent physical custody of the parties' daughter to Spanier. See Minn. R. Civ. P. 52.01 (stating due regard shall be given to trial court's opportunity to judge witness credibility); Lenz v. Lenz, 430 N.W.2d 168, 169 (Minn. 1988) (reviewing custody determination for abuse of discretion and recognizing impropriety of substituting appellate court's judgment for that of trial court).

Long also argues the trial court erred in failing to apply an "endangerment" analysis in making the custody award. While a specific finding of endangerment is necessary to support the modification of a prior custody order under Minn. Stat. § 518.18(d) (1996), the original stipulation in this case provided only a temporary custody arrangement and did not purport to establish permanent custody. Therefore, although the trial court's permanent custody determination changes the child's custody and necessarily reduces the amount of time Long will be able to spend with her daughter, the trial court's determination is not subject to an endangerment analysis. Cf. Clark v. Clark, 346 N.W.2d 383, 386 (Minn. App. 1984) (requiring finding of endangerment when modifying prior permanent custody and visitation order), review denied (June 12, 1984).