may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Nancy Lucia Canning, petitioner,
Filed March 9, 1999
Dakota County District Court
File No. F4-97-8376
Michael J. Mayer, Grannis & Hauge, P.A., 1260 Yankee Doodle Road, #200, Eagan, MN 55121-2201 (for respondent)
Considered and decided by Harten, Presiding Judge, Shumaker, Judge, and Foley, Judge.[*]
Appellant Nancy Canning and respondent Zbigniew Wieckowski were married in 1992; their only child, J.C., was born in 1993. After a period of turmoil involving physical abuse alleged by both parties, they separated in 1996. A temporary order gave appellant physical custody of J.C., with whom she remained in the parties' Stillwater homestead. However, appellant was later ordered to leave the homestead for a year as a condition of probation on criminal charges resulting from the condition of the property. She then took J.C. to Montana for three months without respondent's knowledge. When they returned, she lived in various places in Minnesota. At the time of trial, she was living with J.C. in Isanti County; she has since moved to Wisconsin.
Prior to the dissolution trial, the court ordered a child custody evaluation. The parties were referred to LifeSpan Behavioral Health Services, where psychologist Dr. Beth Harrington was assigned to their case and conducted the evaluation. After administering psychological tests to the parties and J.C., reviewing their records, interviewing the three of them separately, and watching each party interact with J.C., Dr. Harrington made findings on each of the 13 "best interests" factors set out in Minn. Stat. § 518.17 (1998) and recommended that respondent have physical custody.
Appellant then hired Dr. Suzanne Wright, also a psychologist, to perform a study and provide a psychological consultation report. Dr. Wright met with appellant and J.C., but not with respondent.
While the custody evaluation was in progress, appellant filed an allegation of sexual abuse of J.C. by respondent. The allegation was based on J.C.'s statements, which he later recanted. Dr. Wright agreed with Dr. Harrington that the sexual abuse issue should be dropped.
The district court made findings on each of the 13 factors. It also found that the testimony of Dr. Harrington, who was compensated by and familiar with both parties, was more credible than that of Dr. Wright, who was compensated by and dealt with only one party. The district court awarded respondent physical custody. Since the award, J.C. has been living in the homestead with respondent and respondent's mother, who provides care for him. J.C. attends kindergarten at a school across the street from his home.
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
Minn. R. Civ. P. 52.01.
The district court made findings on each of the 13 "best interests" criteria of Minn. Stat. § 518.17, subd. 1 (1998). Appellant disagrees with the findings on some criteria and claims that the court did not give proper weight to other criteria. We address each factor in turn.
1. Minn. Stat. § 518.17, subd. 1(a)(1): "the wishes of the child's parent or parents as to custody"
Appellant agrees with the district court's finding that both parents seek physical custody.
2. Minn. Stat. § 518.17, subd. 1(a)(2): "the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference"
The district court found that J.C., then five and a half, "[was] not considered old enough to express a reasonable preference." Appellant relies on the findings of Dr. Harrington and Dr. Wright to argue both that J.C. is old enough to express a preference and that he expressed a preference for appellant. Dr. Harrington found that J.C.
is not considered old enough to express a reasonable preference. His test responses suggest a mild preference for [appellant]. However, given his tender age, these results are considered equivocal and neither parent was found to be strongly favored over the other.
Dr. Wright's finding corroborates this: "[t]est [r]esults suggest a slightly stronger bond to mother than to father * * *. [J.C.] seems to prefer [appellant's] and [respondent's] care about equally." The district court's finding on this factor was not clearly erroneous.
3. Minn. Stat. § 518.17, subd. 1(a)(3): "the child's primary caretaker"
Appellant agrees with the district court's finding that she was the primary caretaker, but argues that the district court gave the factor insufficient weight by not awarding her custody on that basis. But see Minn. Stat. § 518.17, subd. 1 (a): "The court may not use one factor to the exclusion of all others." The court did not err in refusing to award custody solely on the primary caretaker criterion.
4. Minn. Stat. § 518.17, subd. 1(a)(4): "the intimacy of the relationship between each parent and the child"
Appellant also argues that the district court gave insufficient weight to its finding that "[t]he child is intimate with both parents, but slightly more bonded to [appellant] who has been his more constant caretaker" and to Dr. Wright's claim that appellant has "excellent parenting skills." Nevertheless, Dr. Harrington reported that "[J.C.] clearly feels comfortable with his father and [respondent] is seen as capable of maintaining his bond with his son and strengthening their relationship with more contact." The district court considered Dr. Harrington more credible than Dr. Wright and did not err in its finding on this factor.
5. Minn. Stat. § 518.17, subd. 1(a)(5): "the interaction and interrelationship of the child with * * * parents, siblings, and any other person who may significantly affect the child's best interests"
Respondent's mother, who recently arrived from Poland, now lives with J.C. and assists respondent with J.C.'s care. Her English communication skills are limited. Appellant argues that the district court should have found that it was inadvisable to leave J.C. in his paternal grandmother's care because Dr. Wright had noted that J.C. had formed no bond with his grandmother and because of the grandmother's limited English. But the grandmother had arrived shortly before Dr. Wright interviewed J.C., which explains J.C.'s failure to list her as an integral part of his family. She is now learning English. The district court did not err in failing to find that J.C. should not be cared for by his paternal grandmother.
6. Minn. Stat. § 518.17, subd. 1(a)(6), (7), and (8): "the child's adjustment to home, school, and community"; "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity"; and "the permanence, as a family unit, of the existing or proposed custodial home"
Appellant claims that the district court erred in finding that respondent's home would be more stable than appellant's. Throughout these proceedings, however, respondent has lived in only two places: the homestead he now occupies with his mother and J.C. and the apartment he rented when the temporary order compelled him to leave the homestead to appellant and J.C. Appellant has lived in the homestead, for three months in Montana, in several places in Minnesota, and in Wisconsin; she also has business interests in other states.
Appellant argues that her frequent moving is attributable to her suffering from battered women's syndrome because of respondent's alleged physical abuse. Appellant's first allegation of abuse led to an order for protection issued without findings of abuse; her second allegation was dismissed because the alleged acts did not rise to the level of domestic abuse. Dr. Harrington reported that
[t]he circumstances of the reported incidents along with each parent's narrative and [appellant's] personality dynamics strongly suggest the possibility that these charges were trumped up.
The district court's finding that J.C. will experience greater stability with respondent than with appellant is not clearly erroneous.
7. Minn. Stat. § 518.17, subd. 1(a)(9): "the mental and physical health of all individuals involved"
The district court's finding on this factor is objective and candid in recounting the mental health problems of both parties. Appellant relies on Dr. Wright's report to argue that respondent's mental health makes him less fit than appellant to be a custodial parent.
Dr. Wright reported that respondent "may have an untreated serious and persistent mental illness" that "could include aggressive and violent outbursts * * *." But Dr. Wright never met respondent. Dr. Harrington, who interviewed and tested respondent, reported that nothing in respondent's testing suggested serious emotional disturbance or mental illness and noted that "his work and educational history would suggest that he is fairly stable emotionally." The district court explicitly stated that it found Dr. Harrington more credible than Dr. Wright. "[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. The trial court's findings on the parties' mental health are supported by the evidence. 
8. Minn. Stat. § 518.17, subd. 1(a)(10): "the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any"
The district court found that both parties want to give J.C. love and affection and are capable of providing adequate, if not superior, educational opportunities and guidance. Appellant claims the court should have found that she is more capable because she scored higher on a Parents Awareness Skills Survey. But appellant had spent far more time with the child prior to the trial. Her greater experience as a parent is not dispositive, given that respondent can provide "adequate, if not superior" education and guidance. The district court's finding on this factor is not clearly erroneous.
9. Minn. Stat. § 518.17, subd. 1(a)(11): "the child's cultural background"
Appellant objects to the district court's failure to find that being with his paternal grandmother will negatively affect J.C.'s developmental, socialization, and language skills. However, respondent testified that his mother is learning English and can now communicate with J.C. on simple matters, and both psychologists found that J.C. is at an age-appropriate level developmentally. The district court made no error in regard to this factor.
10. Minn. Stat. § 518.17, subd. 1(a)(12): "the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents * * *"
The district court found no substantial evidence that domestic abuse has had any effect on J.C. Appellant claims that the district court failed to make findings on the issue of whether domestic abuse occurred and failed to consider the negative impact of the alleged abuse on J.C. While there is an indication that J.C. is experiencing some disturbance in his life, there is no evidence other than appellant's statements that connects his disturbance to respondent's alleged abuse of appellant. As Dr. Harrington noted, other possible causes of his disturbance are the breakup of his family unit and his presence at appellant's arrest. The district court's finding on this factor is not erroneous.
11. Minn. Stat. § 518.17, subd. 1(a)(13): "except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child"
The district court found:
Respondent appears significantly more willing to encourage and permit contact. He clearly acknowledges [appellant's] importance in the child's life in a way that [appellant] does not reciprocate. [Appellant's] sudden move to Montana has given the Court great concern, and it is not convinced that such a move will not recur. The Court does not have the same concerns with respect to [respondent], and he appears to have more reason to stay in the area than [appellant.] * * * Respondent expresses a desire to encourage frequent and continuing contact with [appellant.]
Appellant argues first that because the district court did not determine whether abuse occurred, it should not have considered the willingness of each party to foster a relationship between J.C. and the other party. She misreads the statutory exclusion: "except in cases in which a finding of domestic abuse * * * has been made." This is not a case in which a finding of domestic abuse was made. Accordingly, the exclusion does not apply, and the district court properly considered the willingness of each party to foster a relationship between J.C. and the other party.
Moreover, the district court's finding that respondent is far more likely to foster the relationship between J.C. and appellant than appellant is likely to foster a relationship between J.C. and respondent is supported by the evidence. Dr. Harrington reported that:
[Respondent] is seen as significantly more willing to encourage and permit contact. He acknowledges the mother's importance in J.C.'s life and is willing and capable of toning down his anger and negativity toward [her]. [Appellant] seems preoccupied with making [respondent] out to be a villain without just cause. Her actions in the last several weeks suggest that she is willing to go to great lengths to deny [respondent] custody.
Elsewhere, Dr. Harrington noted that appellant has "a strong tendency to demonize [respondent]" and that appellant seemed unaware of her own bias against respondent. There was evidence to support the district court's finding that respondent was more likely than appellant to encourage J.C.'s relationship with his other parent.
Because we see no error in any of the findings, and given the district court's opportunity to judge the credibility of the witnesses, we affirm the award of physical custody to respondent.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The district court declined to order respondent to participate in this second custody evaluation.
 This finding was in accord with Dr. Wright's testimony that she did not consider herself a neutral.
 Appellant relies on Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990) (the "golden thread" of a best interests analysis is the importance of a young child's bond with the primary parent). But Maxfield also notes that "the fact that one parent may be the primary caretaker does not necessarily control who gets custody. All relevant factors must be weighed in the balance." Id. at 222, n. 2. Appellant's reliance is misplaced.
 Appellant also argues that her mental health issues, like her frequent moves, are attributable to battered women syndrome, but the lack of evidence supporting her claim of physical abuse nullifies this argument.
 Appellant relies on Nazar v. Nazar, 505 N.W.2d 628 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993), to argue that the trial court did not fulfill its duty to investigate further her allegations of abuse. Nazar is readily distinguishable; the court there had no opportunity to reach conclusions about alleged abuse because one party did not appear for the custody evaluation. Id. at 633. Here, a thorough custody evaluation of both parties and the child was completed; the court had no need to investigate further.