This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In Re the Marriage of:

Kimberly A. Peterson,

f/k/a Kimberly A. Larson, petitioner,



Kevin L. Larson,


Filed June 1, 1999


Kalitowski, Judge

Crow Wing County District Court

File No. FX97306

Todd A. Kelm, Kelm Law Offices, 1287 2nd Street North, Suite 101, P.O. Box 368, Sauk Rapids, MN 56379 (for appellant)

Gregory J. Lange, Charpentier & Lange, 611 Oak Street, P.O. Box 341, Brainerd, MN 56401 (for respondent)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.



Appellant Kimberly A. Peterson, f/k/a Kimberly A. Larson, contends the district court erred by: (1) modifying the prior custody order by changing the primary physical custodian from appellant to respondent Kevin L. Larson; (2) denying her request for an evidentiary hearing; and (3) failing to make adequate findings of fact. We affirm.


Appellate courts review custody decisions to determine whether the trial court abused its discretion by making findings unsupported by evidence or by misapplying the law. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).


A substantial alteration of visitation rights amounting to a "restriction" of visitation requires a finding that the existing arrangement endangers the child's physical or emotional health or development. Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993). Less substantial alterations of visitation rights, however, are governed by the best interests standard. See Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn. App. 1992) ("best interest standard may still govern insubstantial alterations").

Appellant argues the district court's alteration of the parties' parenting schedule resulted in a modification of custody, changing the primary parent from appellant to respondent. We disagree. Appellant and respondent have joint legal and joint physical custody. The custody arrangement established in their amended dissolution decree does not specify a primary parent, but outlines a detailed "parenting schedule" under which both parties have substantial physical custody of their son. In the order appellant challenges, the district court did not change the labels of joint physical or joint legal custody, but merely altered the parenting schedule. In a joint physical custody situation, a parenting schedule set at the time of a divorce may have to be changed to meet changing circumstances. We conclude the court's alteration of the parenting schedule is similar to an alteration of visitation rights, governed by Minn. Stat. § 518.175, subd. 5 (1998), and is not a modification of custody.

Under Minn. Stat. § 518.175, subd. 5, the court may not "restrict" visitation rights unless visitation is likely to endanger the child's physical or emotional health, or the noncustodial parent has failed to comply with court-ordered visitation. But a modification of visitation that results in a reduction of total visitation time is not necessarily a "restriction" of visitation. Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986). In determining whether a reduction constitutes a restriction, the court should consider the reasons for the change as well as the amount of the reduction. Anderson, 510 N.W.2d at 4.

Here, neither parent was recognized as the "primary" parent. The parties' ability to share physical custody of their child was facilitated by the fact that they lived in the same area. But appellant initiated a change in circumstances by accepting a job and buying a house 100 miles from respondent. It is undisputed that this change in circumstances necessitated a change in the parties' parenting schedule.

Appellant objects to the amended parenting schedule because it reduces the amount of time she has physical custody of the parties' child. However, considering the reason the parenting schedule needed to be changed and the amount of the reduction, we conclude the revised parenting schedule does not amount to a "restriction" as contemplated by the law, but is instead a less substantial limitation. Therefore, the district court properly applied the best interests standard rather than the endangerment standard in changing the parenting schedule. Because the record, including the guardian ad litem's report, supports the district court's determination that the new parenting schedule is in the best interests of the child, we find no abuse of discretion. See Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984) (the trial court has broad discretion to determine the best interests of a child).


Appellant also contends that the district court erred by denying her oral request for an evidentiary hearing. We disagree. Although a party is entitled to an evidentiary hearing when confronted with the other parent's motion to make a substantial change to a judgment on child custody, evidentiary hearings should be limited when they are requested for insubstantial alterations. Lutzi, 485 N.W.2d at 316 (citing Minn. R. Civ. P. 43.05 (trial court role in directing scope of evidence)). Because, as discussed above, the amended parenting schedule is not a substantial change, appellant was not entitled to an evidentiary hearing. We conclude the district court did not abuse its discretion in denying appellant's request for an evidentiary hearing.


Appellant contends the court erred by not making adequate findings of fact in its order. We disagree. Although an appellant is entitled to specific findings of fact when a court modifies custody, written findings of fact are not always mandatory in an order modifying visitation rights. See Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992) (findings of fact regarding the best interests of the child and grounds for custody modification are "absolutely required"); Haala v. Haala, 354 N.W.2d 121, 122 (Minn. App. 1984) (written findings, although preferred, not always mandatory in an order modifying visitation rights). In its order changing the parenting schedule, the court found that appellant's decision to move "was a unilateral decision by petitioner and was not agreed upon by respondent" and that "the move has rendered the agreed upon parenting schedule impossible." Although further findings would have been preferred, the record supports the conclusion that the changes in the parenting schedule are in the best interests of the child. Therefore, we conclude the district court did not abuse its discretion by not making more extensive findings.