This opinion will be unpublished and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

C6-99-534

In re the Matter of:
Thomas Wayne Parker, petitioner,

Appellant,

vs.

Ruth Ann Widga,

Respondent.

Filed August 17, 1999

Affirmed

Schumacher, Judge

Dakota County District Court

File No. F69713031

Roderick N. Hale, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for appellant)

Mary H.C. Flynn, Legal Assistance of Dakota County, LTD, 15025 Glazier Avenue, Suite 201, Apple Valley, MN 55124 (for respondent)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant Thomas Wayne Parker (father) challenges the district court's denial of a motion for expanded visitation, contending he met his burden of proof for granting the motion. We affirm.

FACTS

Father and respondent Ruth Ann Widga (mother) met in 1986 and are the biological parents of three minor children. In June 1994, the parties separated after father admitted he had been sexually abusing K.W., mother's minor daughter from a prior relationship. Father was convicted of second-degree criminal sexual conduct and sentenced to 21 months in prison. In April 1996, mother obtained an order for protection against father. Consistent with a court-ordered visitation evaluation, father began supervised visitation with his children for two hours a week at the Children's Safety Center.

In April 1997, father initiated this action to establish his custody and visitation rights. In November 1998, after an evidentiary hearing, the district court denied father's motion to expand existing visitation. In January 1999, the district court denied father's subsequent motion to vacate its prior order and granted mother sole legal and physical custody of the minor children. Father appeals, arguing expanded visitation is in the best interests of the children.

D E C I S I O N

A district court has broad discretion in deciding visitation questions and will not be reversed absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). A heightened custody and visitation standard requires individuals who have been convicted of certain offenses, including sexual abuse, to prove the visitation sought is in the child's best interests. Minn. Stat. § 518.179 (1998). "If the victim of the crime was a family or household member, the standard of proof is clear and convincing evidence." Id. at subd. 1.

In this case, the district court's January 1999 order contained findings addressing each best interest factor. The court noted that, under section 518.179, father bears the burden of showing by clear and convincing evidence that expanded visitation is in the best interests of the children. The court concluded father had failed to show that it is in the best interests of the children that he be allowed visitation in any form other than currently ordered. Father's principal complaint about the current state of supervised visitation is that it continues exclusively at the Children's Safety Center. He asserts that he met his burden of proof under section 518.179 for granting visitation supervised by an adult member of his family away from the Children's Safety Center.

A guardian ad litem report recommended that supervised visitation could occur either at the Children's Safety Center or similar facility, or by an adult member of father's immediate family. But that guardian ad litem subsequently testified she had some concerns about whether supervision by father's family would be in the best interests of the children. Accordingly, it is not clear that the guardian ad litem thought visitation outside the Children's Safety Center would be in the best interests of the children. Regardless, the district court is not bound to adhere to the recommendations of a guardian ad litem. See Sydnes v. Sydnes, 388 N.W.2d 3, 7 (Minn. App. 1986) (trial court is not bound to adhere to guardian ad litem testimony, especially if outweighed by other evidence).

The district court held an evidentiary hearing and took testimony from both parties as well as father's mother and sister and two guardians ad litem. While father and his family maintained he was no longer a risk to his children, mother testified otherwise. Ultimately, whether expanded visitation is in the best interests of the children turns on weight and credibility determinations. This court defers to a district court's assessment of the credibility of the parties. See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn.1990) (appellate court defers to trial court's assessment of witnesses in evaluating what is in best interests of child). The district court did not abuse its discretion in concluding that father had not shown by clear and convincing evidence that expanded visitation was in the best interests of the children.

Affirmed.