This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998)

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-99-295

In Re the Custody of: K.E.C. and M.D.C.,

Dawn Kay Bowman, petitioner,
Appellant,

vs.

Michael David Collett,
Respondent.

Filed July 13, 1999
Affirmed
Lansing, Judge

Crow Wing County District Court
File No. F49750697

John R. Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant)

Virginia J. Knudson, Borden, Steinbauer & Krueger, P.A., 302 South Sixth Street, Brainerd, MN 56401 (for respondent)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

The district court adjudicated Michael Collett the father of two children born to Dawn Bowman and granted Collett sole physical custody. Bowman appeals the custody provision. The court's custody order is based on findings supported by evidence addressing the statutory factors and is not an abuse of discretion. We affirm.

FACTS

Dawn Bowman and Michael Collett's older child was born in 1991 and their younger child in 1994. Bowman and Collett did not marry, but lived together intermittently in Minnesota, Missouri, and Tennessee. The children have been shuttled, sometimes from month to month, between these homes and between separate residences maintained by their parents. Bowman and Collett have been able to agree on the children's residence at some times, but at other times have had sharp disagreement. Collett twice started custody actions prior to this proceeding, and Bowman twice initiated actions against Collett for deprivation of parental rights.

After the parents' last attempted reconciliation in late 1995, Bowman remained in Minnesota with the children. In 1996 the children were with Bowman except for six weeks during the summer and several weeks in December. In May 1997, in response to Bowman's request, Collett took the children to live with him in Missouri. Collett and his fiancee, who became his wife in August 1997, cared for the children until September 1997. At that point, Collett returned the children to Minnesota in response to Bowman's bringing this action, which included a deprivation-of-parental-rights charge.

The children remained in Bowman's custody from September 1997 until the district court's final order in this proceeding, except for a month beginning in January 1998. During that month, relatives cared for the children while Bowman served a sentence in the Crow Wing County jail for receiving stolen property and possession of methamphetamines.

During the three-day contested hearing, the parents presented their own testimony and the testimony of family members and friends, a welfare-fraud investigator, a babysitter, and two teachers. The district court made findings on the statutory factors and concluded that the parents should have joint legal custody with sole physical custody in Collett. The court provided visitation for Bowman that includes ten weeks during the summer, an additional five days during a school break, and one week in December, including Christmas in alternating years. Bowman appeals from judgment entered on the order.

D E C I S I O N

A district court has broad discretion in resolving custody issues. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). On appeal, "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." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). Our review is conducted in the light most favorable to the district court's findings. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).

The primary consideration in custody determinations is the best interests of the child. Minn. Stat. § 518.17, subd. 1 (1998); Berndt v. Berndt, 292 N.W.2d 1, 2 (Minn. 1980). The statutory factors to be weighed in determining the best interests of the child include a child's reasonable preference; the child's primary caretaker; the intimacy of the relationship between each parent and the child; the interaction and interrelationship of the child with a parent or parents, siblings, or other significant persons; the child's adjustment to home, school, and community; continuity in a stable, satisfactory environment; each parent's capacity and disposition for love, affection, and guidance; and each parent's disposition to encourage the child's contact with the other parent. Minn. Stat. § 518.17, subd. 1. The court is required to make "detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child." Id.

The court found that most factors weighed evenly; and the record supports the findings that the children have an intimate and loving relationship with both parents, that the children are equally adjusted to living in either Missouri or Minnesota, that Bowman and Collett were both disposed to permit and encourage frequent continuing contact by the other parent with the children, and that the children had not expressed (and the parents had not elicited) a custody preference from the children.

The court found that, although "both parties have provided care for the two minor children," Bowman was the children's primary caretaker. The court found, however, that "there has been very little stability in the lives of the two minor children." See Minn. Stat. § 518.17, subd. 1(7) (1998). Since the younger child's birth, Bowman has lived in four different residences in Minnesota, in addition to living with Collett on several occasions, and Collett has lived in seven different locations. The children have lived with Bowman, Bowman and Collett, with Collett and his mother, and with Collett and his wife. The children also lived with various relatives of Bowman's while she was in jail.

The court found that the children had difficulty interacting while in Bowman's care, but their interaction improved in Collett's care. Several witnesses testified that the children had behavioral problems that diminished when the children lived with Collett in 1997, but increased progressively when the children returned to Bowman's care. Witnesses also testified that the children's behavioral problems reappeared when they were in the sole care of Bowman during 1998. Specific testimony by the older child's teacher indicated that the child was hyperactive, needy, demanded a lot of attention, and had problems with self-control. These problems had increased during the time the child was living with Bowman.

The court found that the children have developed a loving and positive relationship with their stepmother, and that Collett and their stepmother "appear better able to provide the two minor children with structure, appropriate discipline, and guidance." Bowman maintains that the court failed to give sufficient weight to her role as primary caretaker. Although this is an important factor, it does not create a presumption. See Minn. Stat. § 518.17, subd. 1; Maxfield v. Maxfield, 452 N.W.2d 219, 222 n.2 (Minn. 1990) (primary-caretaker factor does not determine custody; rather, "[a]ll relevant factors must be weighed in the balance"). The court weighed more heavily the strong interests of the two children in securing a stable environment that will provide consistent guidance, structure, and discipline. The court focused on the evidence that, although the children had close and loving relationships with both parents, the children's father had been better able to create an environment that provided stability and structure. The court's findings are supported by the testimony of several witnesses specifically comparing the children's behavior while in Collett's care with their behavior while in Bowman's care. The court did not abuse its discretion in determining that the factors weighed in favor of sole physical custody in Collett, with liberal visitation with Bowman.

Affirmed.