Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
f/k/a Kary A. Maier,
f/k/a Kary A. Knowles, petitioner,
Donald C. Knowles,
Affirmed in part, reversed in part
Hubbard County District Court
File No. F89692
Victor H. Smith, P.O. Box 160, Walker, MN 56484 (for respondent)
Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.
When the parties separated in late 1994, they were the parents of five children whose ages are now 14, 12, 9, 7, and 5. Appellant Kary Thayer challenges a 1997 divorce judgment that places sole physical custody of the three older children with their father, respondent Donald Knowles, and determines that respondent should have sole legal control over the religious upbringing of all five children. Except as to respondent's control of the religious upbringing of the children in appellant's custody, we affirm.
At the trial in July 1996, the parties disputed physical custody of the three oldest children and legal custody of all five children. The parties agreed that appellant would retain physical custody of the two youngest children. The court placed physical custody of the three oldest children with respondent.
The trial court granted the parties joint legal custody of all five children, with the exception of granting respondent sole legal custody "relative to the issue of religious upbringing." The court premised this conclusion on its findings that respondent opposed appellant's desire to raise the children in the Jehovah's Witnesses faith, that the children were "baptized and raised in the Lutheran faith," and that "respondent would apparently continue to raise" the children in the Lutheran faith.
Placement of Physical Custody
Appellant contends that the trial court erred in placing physical custody of the three oldest children with respondent because the court (a) gave undue weight to the children's preferences, and (b) gave too little weight to the evidence that respondent was an unfit parent.
Appellant stresses that the evidence showed that the second and third children were insufficiently mature to have a reliable preference for their father. Appellant also argues, on the one hand, that all three of the older children may express a preference for their father because they fear him; and on the other hand, that their preference may reflect their disagreement with their mother's strong discipline.
The trial court recited in its findings the preferences of the three oldest children to live with their father and found that the children were sufficiently mature to express a preference. Because there is evidence in the record permitting this finding of fact, it is not clearly erroneous. And the court's best interests finding is not premised solely on the matter of the children's choice. The court also found (1) the two oldest children are more intimate with their father and have a strained relationship with their mother, (2) all three children have a close relationship and interact well with their father and enjoy helping him with his farm work, (3) all three children are closely bonded with their father, and (4) all three children currently reside with their father pending this appeal. The trial court did not abuse its discretion in determining the best interests of the children.
Contending that she has proven respondent's unfitness, appellant argues that the record shows deficient school performance of the three oldest children during the time they were living with their father. The trial court found that respondent provided a satisfactory living arrangement in his home and attributed the children's deficient school performance to their difficulty in dealing with the divorce. The evidence permits the trial court's assessment of the education issue.
Appellant also claims that respondent exercised poor judgment in attending to the children's medical needs. Neither medical episode shown in the record is so compelling that it renders clearly erroneous the trial court's finding that respondent maintained an adequate living arrangement for the children. In the most serious incident, where respondent delayed treatment for the oldest child's appendicitis, the child received treatment before any lasting harm was done.
Finally, appellant contends that the three oldest children were placed with respondent because he was "successful in focusing the court on religious prejudice." The record contains an abundant showing of respondent's concern about appellant's desire to expose the children to her religious faith. The record does not show that the trial court acted because of a religious prejudice or out of deference to one religion over another. Overall, the trial court did not abuse its discretion in determining the children's best interests.
2. Religious upbringing
Appellant contends that she should be permitted to bring the children who are in her custody to religious events. She is precluded from doing so by the trial court's decision to grant respondent sole legal custody "relative to the issue of religious upbringing" and to provide specifically that appellant cannot expose her children to any religious training without respondent's consent. Insofar as it affects the two children in appellant's custody, the court's legal custody provision is improper as a matter of law. Under Minn. Stat. § 518.176 (1996), the "custodian" may determine the religious training of the children unless their "physical or emotional health is likely to be endangered" or "emotional development [is] impaired."
The trial court did not make any finding of endangerment in this case, nor does the record permit such a finding. Under these circumstances, the court could not limit appellant's freedom to direct the religious training of the two children in her custody. Accordingly, paragraph 24 of the trial court's judgment will be amended to confine to the three older children respondent's declared authority to direct the religious upbringing of the children.
Affirmed in part, reversed in part.
 Minn. Stat. § 518.176 was enacted before the more particular descriptions of custody found in section 518.003, subdivision 3 (1996). We conclude that the reference to custodian in section 518.176 must include a party who has primary physical custody of a child.