Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Annette Irene Schroeder, petitioner,
Darin Hans Anfinson,
Filed May 26, 1998
File No. F0951506
John Kallestad, P.O. Box 1126, Willmar, MN 56201 (for respondent)
Allen H. Aaron, Meshbesher Law Office, 10285 Yellow Circle Drive, Minnetonka, MN 55343 (for appellant)
Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.*
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
U N P U B L I S H E D O P I N I O N
Appellant Darin Hans Anfinson contends the district court erred by explicitly stating it would not consider respondent Annette Irene Schroeder's sexual orientation as a factor in the court's custody determination. We affirm.
D E C I S I O N
A district court has broad discretion to provide for the custody of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). When determining child custody, the district court must consider the best interests of the children in view of the factors set out in the child custody statute. Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). An appellate court will not reverse a custody determination unless the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).
Because appellant does not challenge the district court's findings, our review is limited to considering whether the court improperly applied the law. Appellant argues the district court erred when it stated that "the sexual preference of a party has no probative value in and of itself in a contested custody case." Appellant contends that because the best interests of the child statute, Minn. Stat. § 518.17, subd. 1 (1996), uses the word "including" before it lists the required factors, the district court erred by failing to consider respondent's sexual orientation as a factor. On this record, we disagree.
Initially, we note that the statute does not explicitly require the court to consider a party's sexual orientation as a custody factor. In addition, the statute dealing with the best interests factors specifically states that: "[t]he court shall not consider conduct of a proposed custodian that does not affect the custodian's relationship to the child." Minn. Stat. § 518.17, subd. 1(b) (1996). If the legislature had wanted to require courts to consider sexual orientation as a factor in a custody determination, it would have specifically included that consideration as a factor. See Ullom v. Independent Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn. App. 1994) (concluding courts cannot add to a statute "what the legislature purposely omits or inadvertently overlooks") (quotations omitted); Minn. Stat. § 363.02, subd. 1(3) (1996) (demonstrating the legislature's purposeful consideration of the issue of sexual orientation in certain employment areas).
We agree with appellant's contention that the district court must consider how aspects of a parent's lifestyle affect the best interests of the children. However, we conclude here that the district court's findings indicate it appropriately considered respondent's lifestyle, including her sexual orientation, to the extent it was relevant to the best interests of the parties' children. The district court specifically considered: (1) the children's interaction and interrelationship with respondent's significant other; (2) the difficulties the children's extended family has had with respondent's sexual orientation, how the family members express those difficulties in front of the children, and how the difficulties have caused alienation in the family; (3) the children's adjustment to the changes in their lives since their parents separated; (4) the conflict respondent's church has with her lifestyle and her intent to continue to educate the children in the same church and school; and (5) the fact that respondent sought professional help to prepare for future questions the children may have regarding her sexual orientation. Thus, we conclude the district court appropriately analyzed the implications of respondent's lifestyle on the best interests of the children and did not err by stating that sexual orientation does not have "probative value in and of itself" in a contested custody determination.