This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Matter of:

Bradley A. Kubat,



Michelle A. Giesler,


Filed June 1, 1999


Foley, Judge[*]

Steele County District Court

File No. F5-97-50155

Catherine Brown Furness, Premier Bank Building, 209 E. Main, Ste. D, P.O. Box 603, Owatonna, MN 55060 (for appellant)

Todd F. Rietz, Rietz, Rietz & Rietz Law Office, Law Building, 118 N. Cedar, P.O. Box 264, Owatonna, MN 55060 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Foley, Judge.


FOLEY, Judge

Bradley Kubat appeals from a trial court judgment in a paternity action granting Michelle Giesler sole physical custody of the parties' three-year-old son. Kubat claims the trial court's findings are unsupported by the evidence and do not justify its conclusion that joint physical custody is not in the best interests of the parties' child. We reverse.


Appellate review of custody determinations is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). The reviewing court must sustain the trial court's factual findings unless they are clearly erroneous, but need not defer to the trial court in reviewing questions of law. Id.

In deciding whether to grant joint legal or physical custody, the trial court must consider the best-interests-of-the-child factors listed in Minn. Stat. § 518.17, subd. 1 (1998) and the additional factors listed in Minn. Stat. § 518.17, subd. 2 (1998). Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993). These additional factors include: (1) the ability of the parents to cooperate in rearing the children; (2) their methods for resolving disputes regarding major decisions in the child's life and their willingness to use those methods; (3) whether it would be detrimental to the child if one parent were to have sole custody; and (4) whether domestic abuse has occurred between the parents. Minn. Stat. § 518.17, subd. 2 (1998).

Minnesota law does not favor joint physical custody. Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995); Peterson v. Peterson, 393 N.W.2d 503, 506 (Minn. App. 1986). The preference against joint physical custody is based on the belief that regularity in a child's daily routine and emotional stability are essential to a child's healthy development and are difficult to attain when a child is shifted back and forth between two homes. Kaehler v. Kaehler, 219 Minn. 536, 539, 18 N.W.2d 312, 314 (1945).

Joint physical custody is appropriate in "exceptional cases," however. Brauer v. Brauer, 384 N.W.2d 595, 599 (Minn. App. 1986). Exceptional cases are those in which the parties exhibit the ability to cooperate, communicate, and place the best interests of their children before their own interests and desires. See, e.g., Gorz v. Gorz, 428 N.W.2d 839, 843 (Minn. App. 1988) (affirming grant of joint physical custody where record reflected parents were able to cooperate and communicate and children were attached to both parents and would benefit from spending extended periods with them); Veit v. Veit, 413 N.W.2d 601, 603-05 (Minn. App. 1987) (affirming joint physical custody award where parties had been able to cooperate in maintaining a joint custody arrangement on their own for almost three years); Berthiaume v. Berthiaume, 368 N.W.2d 328, 332-33 (Minn. App. 1985) (upholding grant of joint legal and physical custody despite parents' lack of cooperation during dissolution proceedings, on finding that their mutual concern for children would enable them to cooperate in the future). Although this court will readily affirm a joint physical custody award if sufficiently supported by the evidence, it will reverse a denial of joint physical custody only in "compelling"cases. Brauer, 384 N.W.2d at 599 (holding joint physical custody not compelled as matter of law where parties unable to work together in maintaining joint custody agreement reached through court services).

The trial court in this case found that neither parent had been the child's primary caretaker and that both parents (1) had been able to cooperate in raising the child and in providing continuity for him, (2) shared the same parenting philosophies and rarely disagreed over the child's care or the shared custody arrangement, and (3) had a warm and loving relation with the child. These findings notwithstanding, the court awarded sole physical custody to Giesler on a finding that the child seemed confused by the frequent shifts between homes and that joint physical custody would have a negative effect on his development. On appeal, Kubat argues that the evidence does not support the trial court's findings. We agree.

The record shows that the child cries on occasion when he is picked up or dropped off and has to say good bye to one parent or interrupt play. Crying upon being separated from a parent or interrupting play, however, is hardly symptomatic of confusion over frequent shifts between homes or evidence that shared custody would negatively affect the child's development. All three-year-old children cry occasionally under the same circumstances.

Giesler's testimony that the existing shared custody arrangement "affects" and "hurts" the child is similarly inadequate to support the trial court's findings. The only specific reason Giesler gave for why joint physical custody is not in the child's best interests is that the child cries when his father picks him up or drops him off. Beyond that, Giesler could not provide a single reason more specific than "because I just know" or "because I can see it" or "I know that it hurts [the child], I know that -I just know [he] can't do this." This testimony is vague at best and does not reasonably support the trial court's findings.

Undoubtedly, it would be best for the child to have one home where he could establish a daily routine with both parents. The fact that a single home is generally preferable, however, does not in itself justify a denial of joint physical custody. See Minn. Stat. § 518.17, subd. 2 (listing factors court must consider when party seeks joint custody). If that were the standard, joint physical custody would never be appropriate. Accordingly, absent specific, credible evidence that a child is or would be negatively affected by joint physical custody in light of the factors in Minn. Stat. § 518.17, subd. 2, a denial of joint physical custody constitutes an abuse of discretion.

In the case at hand, the trial court's denial of joint physical custody was based solely on the presumption that a single home base is preferable for the child. The record contains no evidence, other than Giesler's vague and uncorroborated testimony, that the child is confused by the frequent shifts between homes or that he has been or will be negatively affected by the shared custody arrangement his parents have maintained on their own for almost three years. On the contrary, the record convincingly shows--and the trial court found--that the parties are able to cooperate and communicate, share the same philosophies about child rearing, rarely disagree about significant issues affecting their child, are willing to use mediation to resolve conflicts, and have succeeded in raising a happy and self-confident child under less-than-ideal circumstances. This case is therefore one of the few "exceptional case[s]" in which joint custody is warranted despite the law's preference against it. Brauer, 384 N.W.2d at 599. It is also one of the rare "compelling" cases in which the trial court's refusal to award joint physical custody constitutes reversible error. Id.

Accordingly, we reverse.


[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.