Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Karissa Leah Stafford, petitioner,
Michael John Stafford,
John Stafford, et al., intervenors,
Filed May 5, 1998
Winona County District Court
File No. F195969
Cindy K. Telstad, Streater & Murphy, P.A., 64 E. Fourth St., P. O. Box 310, Winona, MN 55987-0310 (for appellant Diana Sturtevant)
Karin L. Sonneman, Sonneman & Sonneman, P.A., 111 Riverfront, Suite 202, Winona, MN 55987 (for respondent Michael Stafford)
Judy M. Gernander, Law Office of Judy M. Gernander, 164 E. Fourth St., Suite 4, Winona, MN 55987 (for respondents John and Pamela Stafford)
Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.
Appellants, the mother and maternal grandmother of two minor children, challenge the grant of the children's physical and legal custody to their paternal grandparents. Because we see no abuse of discretion, we affirm.
In this custody dispute, appellants are Karissa Stafford, the children's mother, and Diana Sturtevant, Karissa's mother and the children's maternal grandmother. Respondents are Michael Stafford, the children's father, and John (Jack) and Pamela Stafford, Michael's parents and the children's paternal grandparents.
Karissa and Michael Stafford began their relationship in 1989 when both were teenagers living with their families in California. They had a daughter, S.S., in April 1992. In August 1992, when Karissa turned 18, they married. Their son, M.S., was born in July 1993.
Karissa has brain damage resulting from childhood meningitis. She did not complete high school, is not employed, and may be unemployable. She is subject to sudden, volatile mood changes and will often respond inappropriately to others, including children. A change in her medication in August 1996 has improved her condition somewhat. Throughout her childhood, and occasionally as an adult, Karissa has lived with and been cared for by her mother, Diana, a widow, who has not been able to control Karissa's often disruptive behavior.
Michael has an extensive criminal record, has abused illegal drugs and alcohol, and has had several convictions for theft, assault, and battery. While he is qualified as an aviation mechanic, he has little work history and has been incarcerated at various times.
In September 1994, Pamela and S.S. moved from California to Aitkin, Minnesota, and have lived there together almost continuously since; in November 1994, Jack, Michael, Karissa, and M.S. joined them in Aitkin.
During 1995, Karissa and Michael took M.S. to Winona. The marriage began to disintegrate; Karissa filed a petition for dissolution in July 1995. Because neither Michael nor Karissa was able to cope with small children, they asked Jack and Pamela to care for them. Jack and Pamela agreed and together with the children have lived in Aitkin since August 1995. Michael filed a counter-petition for dissolution in October 1995. Jack and Pamela were granted temporary legal and physical custody of the children in December 1995.
When M.S. arrived in Aitkin in August 1995, he had health problems, dental problems, and developmental delays. Both children, however, have received appropriate medical services and remedial education; both are thriving. Pamela, who does not work outside the home, and Jack have cared for them and borne the costs of raising them.
Although Jack and Pamela do not use physical punishment on their grandchildren S.S. and M.S., they did use it on their own children. (Jack spanked Michael's brother, then age 10, with a paddle.) Both Jack and Pamela testified that they ceased using physical punishment after this incident and that they no longer believe in it.
Jack and Pamela, when raising their own children, had rigid house rules prohibiting drugs and alcohol; Michael began leaving home occasionally when he was 15 because he would not comply with these rules. A daughter left home at sixteen and a half and remained in foster care until she was 18.
Diana and Karissa now live together in California. Diana, employed as a kindergarten teacher, is also a foster parent. She testified that she still cares for Karissa in a number of ways and that she herself suffers from and takes medication for depression.
At the time of dissolution, Michael did not seek custody himself; he sought to have his parents retain permanently their temporary legal and physical custody. Karissa sought joint legal and physical custody with her mother, Diana, with primary physical placement of the children with Diana. Diana, Pamela, and Jack all intervened in the dissolution action and testified at trial, as did a Winona County custody evaluator, two Aitkin county social workers, a psychologist with expertise on children's bonding, and the guardian ad litem. The trial court granted permanent legal and physical custody to Jack and Pamela. After the trial court denied a new trial motion and largely refused to amend decree provisions, both Karissa and Diana appealed. Karissa requests joint physical and legal custody with her mother in California. Diana seeks either joint custody with Karissa or sole physical and legal custody for herself, or in the alternative remand for a new trial on the issue of the children's bonding to Jack and Pamela.
1. Use of the temporary order
Appellants argue that the court erred in basing its custody determination in part on the custody established by the temporary order. This argument, however, ignores the reality of the children's situation when the temporary order was issued. S.S., in her first two years, experienced numerous moves and changes of caregiver, but had been living with Jack and Pamela in Aitkin for 16 months at the time of the temporary order. She was flourishing physically, socially, and psychologically. M.S., after frequent changes of residence and caregivers, had been with Jack and Pamela for five months at the time of the temporary order. During this five-month period, his physical health and development were much improved. The temporary order merely formalized the children's de facto successful custody arrangement with Jack and Pamela. See Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn. App. 1990) (holding that placement with a nonparent may be appropriate when "the court legitimizes a de facto custody arrangement and allows the nonparent to retain custody").
Appellants argue that their rights were prejudiced and Minn. Stat. § 518.131, subd. 9 (1996) (providing that a temporary order shall not prejudice rights to be adjudicated at a subsequent hearing), was violated because the temporary order enabled Jack and Pamela to form the close relationships with the children that the court used as a partial basis for awarding them custody. The dispositive factor in the children's formation of a relationship with Jack and Pamela rather than with Diana, however, was their parents' decision to move to Minnesota and their request that Jack and Pamela care for the children because they were unable to.
Appellants also challenge the finding that Jack and Pamela were primary caretakers as not pertaining to the period prior to the parties' separation. We disagree and find that appellant's reliance on Pikula, 374 N.W.2d at 714 (holding that custody should be awarded to the party that had been the primary parent "at the time the dissolution proceeding was commenced"), is misplaced. The record indicates that the only stable living situation either child knew up to the point of the temporary order was with Jack and Pamela in Aitkin. They were the primary caretakers prior to the separation of Michael and Karissa and continue to be at present. We recognize that granting temporary custody to one party pending a dissolution action may deprive other parties of custody during that period. While mindful of the statutory provision that rights not be prejudiced, excluding contenders for permanent custody from consideration as temporary custodians certainly would not be in the best interests of a child. The court did not err in considering the successful temporary custody of Jack and Pamela when making a permanent custody decision.
2. Failure to find that appellants' custody would either endanger the children or not be in their best interests
Karissa argues that, absent a finding that custody with herself and her mother would endanger the children, the trial court erred in granting custody to the paternal grandparents. We disagree and find appellant's reliance on Westphal to support this particular proposition to be misplaced. Westphal addressed a modification of custody and the high threshold required by Minn. Stat. § 518.18 before that custody could be modified. Id. at 228. This case involves an initial determination of custody in which the factors of Minn. Stat. § 518.17, not section 518.18, are applied. Further, the Westphal court recognized that the overriding consideration must be the best interest of the child and that "certain extraordinary situations may exist in which the child's best interests require placement with a nonparent." Id. at 229.
Karissa argues, further, that the court erred by granting custody to Jack and Pamela absent a finding that custody with herself and her mother would not be in the children's best interests. However, the court made extensive findings as to why custody with Karissa would not be in the children's best interests. The court also found that it would be very traumatic for these children to move to California to live with people they know only slightly in a community they do not know at all, particularly because distance and cost would make a gradual transfer of custody impossible. The court also found that, in moving to California, the children would go from a full-time at-home caregiver to a situation in which their primary caregiver works outside the home.
3. The alienation of Karissa and Diana from the children
Karissa argues that in light of the court's concern that Jack and Pamela would not foster the children's relationships with Karissa and Diana, granting Jack and Pamela custody was an abuse of discretion. We note the importance of these custodial grandparents permitting and encouraging continuing contact with the children's natural mother and maternal grandmother and believe that the trial court addressed its own concerns by setting up an exceedingly detailed schedule of gradually increasing visitation, by specifying that the children have unsupervised and unmonitored phone conversation with appellants, and by requiring that Jack and Pamela not alter or cancel scheduled visitation without a doctor's certificate that the child's health would be endangered by it.
4. The findings as to Diana's availability and supervision of Karissa
Diana argues that it was clearly erroneous to find that she would be less available to the children than Jack and Pamela because she works outside the home and that she would not supervise all of Karissa's contact with them. However, Diana's own testimony that she is out of the home from eight to at least one every day, as well as at some other times, and that while the children would be in school part of that time, there would be times when they would require other care, supports the finding that Jack and Pamela between them will have more time than Diana to devote to the children. Further, the trial court's finding that "[Diana] does not plan to supervise all of Karissa's time with the children" is supported by testimony in the record.
5. Findings as to the relationship between the children and Jack and Pamela
Diana challenges the findings that the children are deeply attached to Jack and Pamela, have a deep psychological bond and their most intimate relationships with them, and would be devastated if required to leave them. Diana does not argue that the children are more attached to anyone else; she merely notes that no formal attachment study was done and claims the fact that the children have lived with Pamela and Jack for an extended period does not support a finding of attachment.
While Diana argues that the testimony of the attachment expert who appeared as the court's witness supports a conclusion that the children may have attachment problems, we find no basis for that characterization of the testimony. The expert testified entirely from a hypothetical standpoint, without having met any of the parties, and was careful throughout to make it clear that he could give no specific recommendation in a case where he had met none of the principals. His testimony as a whole would not support findings that the children are not attached to Jack and Pamela, that they would not be appropriate caregivers, or that custody should go to Diana and Karissa. The trial court's findings as to the relationship between the children and Jack and Pamela are supported by the evidence and are not clearly erroneous.
In support of her argument for a new trial and reopening of the record on the limited issue of the children's attachment, Diana argues that there should have been an attachment evaluation of the children. She claims the court's finding that the children are attached to Jack and Pamela is based on assumptions and speculation. There is no merit in Diana's argument on this issue; her own testimony supports the trial court's decision on attachment. Diana testified that the children had no difficulty with Pamela's leaving them for visitation, but cried and were disturbed when Diana or Karissa left. Contrary to Diana's apparent suggestion that these reactions show nonattachment to Jack and Pamela, according to the expert upon whom Diana otherwise relies, these reactions demonstrate that the children are more securely attached to Jack and Pamela and only insecurely attached to Diana and Karissa. Given the evidence presented on the issue of attachment, the court did not abuse its discretion in denying the motion for a new trial.
Because we see no error in the application of the law and no abuse of discretion in the findings or in the denial of a motion for a new trial, we affirm.
 She stated in a deposition that accusations of abuse made by her against her father, Jack, were entirely fabricated because she wanted to leave home to live with her boyfriend, of whom her mother, Pamela, did not approve.
 In commendably detailed findings of fact and conclusions of law, the court also ordered that Jack and Pamela take a parenting class each year on specified topics, that Michael's visitation be supervised by his parents, that Karissa's visitation be in the presence of either Diana or a responsible adult chosen by Diana, that Diana have visitation, that the children's uninterrupted time with Diana and Karissa be increased as they get older, but arranged so as not to interrupt their schooling, that Jack and Pamela continue to bear the costs of raising the children, and that Karissa and Diana bear the costs of visitation.
 Diana's argument that the court failed to connect its findings to its conclusions is without merit. The fact that the trial court noted negative points about Jack and Pamela but nevertheless awarded them custody reflects the objectivity and thoroughness of the court's findings; it does not constitute an error of law.
 See also Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn. 1989) (holding that there were the requisite grave and weighty reasons for placing custody with a nonparent where, inter alia, the child had been integrated into the nonparent's home with the initial consent of the parent and none of the experts testified that custody should be with the parent).
 We recognize that Minn. Stat. § 518.17, subd. 1(9) (1966), provides that the disability of a parent "shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child." However, in regard to Karissa, the court found inter alia that:
Diana Sturtevant has not been able to control her adult daughter's erratic behavior.
Karissa resists and rebels, often running out without resources or preparation.
Karissa is easily influenced by others and easily exploited.
[T]he children may be endangered in [Karissa's] care.
Karissa's behavior could be very frightening and upsetting to the children even on a day-to-day basis.
Karissa has struck the children, that she has yelled and sworn at them, and generally been rough with them when provoked. She hasn't the emotional maturity to respond in a controlled adult manner to the provocations of young children.
She strikes the children, pulls them around roughly by the arms, sits them down with great force, pushes them away, and when she is angry she yells and swears at them and calls them abusive names.
The court also noted the conflicting evidence on the subject of Karissa's treatment of the children.
 When asked if she intended to leave the children alone with Karissa, Diana said "No"; but when asked if somebody would be watching Karissa with the children, she said "I'm not sure."
 The expert outlined the degrees of attachment, with the strongest being "secure attachment" in which a child does not panic when left and is able to deal cautiously but comfortably with strangers, while "insecure attachment" involves anxiety at separation.
 Finally, a decision on appellant's motion to strike part of respondent's brief, or in the alternative to submit additional material, was deferred to the panel. Because this material, pertaining to a domestic abuse action against Michael, is not relevant to the custody issue, the motion to strike is granted.