This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Custody of: S. S. J.-V.

Filed March 10, 1998

Affirmed in Part, Reversed in Part, and Remanded

Kalitowski, Judge

Concurring specially, Davies, Judge

McLeod County District Court

File No. F397510

Michael D. Venn, P.O. Box 6211, St. Cloud, MN 56302-6211 (pro se appellant)

Charles H. Thomas, Law Offices of Southern Minnesota Regional Legal Services, Inc., 1302 South Riverfront Drive, P.O. Box 3304, Mankato, MN 56001 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mansur, Judge.*



Appellant Michael D. Venn and respondent Sonja R. Johnson are the parents of S.S.J.-V., born on September 5, 1996. Appellant seeks review of an October 6, 1997,

McLeod County District Court order denying his motions for custody of S.S.J.-V. and

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

for leave to file a private child in need of protection or services (CHIPS) petition. We affirm the denial of the CHIPS petition, but reverse the denial of appellant's custody motion and remand for an initial determination of custody under Minn. Stat. § 518.17 (1996 & Supp. 1997).



When a CHIPS petition is filed by an individual who is not a county attorney or an agent of the Commissioner of Human Services, the district court "shall determine whether there is probable cause to believe that a need for protection or services exists before the matter is set for hearing." Minn. Stat. § 260.131, subd. 1(b) (Supp. 1997). "The court may not allow a petition to proceed * * * if it appears that the sole purpose of the petition is to modify custody between the parents." Id.

In this case, the district court denied appellant's request for proceedings on his private CHIPS petition with respect to S.S.J.-V. because the petition comprised the same factual allegations made by appellant in the previous custody proceeding. We conclude the record supports the district court's denial of the CHIPS petition on the ground that its sole purpose was to determine custody between the parties.


We review custody orders to determine "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). Although this court must sustain the district court's findings unless they are clearly erroneous, we need not defer to the district court in reviewing questions of law. Id. "Determining the proper statutory standard to be applied presents a question of law." Id.

In this case, the parties executed a recognition of parentage with respect to S.S.J.-V., which was filed with the Office of the State Registrar on October 14, 1996. Respondent is also the mother of seven other children, of whom appellant is not the father. Respondent's parental rights to six of the children have been terminated because of her alcoholism. CHIPS petitions were filed in Nicollet County regarding S.S.J.-V. and her older half-sibling S.A.J. because respondent was alleged to be abusing alcohol.

On April 9, 1997, the Nicollet County District Court issued an order dismissing the CHIPS petition with respect to S.S.J.-V. and returning custody of S.S.J.-V. to respondent because respondent had successfully completed treatment for alcoholism. On April 15, 1997, appellant filed a petition in Nicollet County for custody of S.S.J.-V., claiming S.S.J.-V. was endangered in respondent's custody because respondent had resumed the consumption of alcohol. Respondent opposed the petition, arguing that she had maintained sobriety and that appellant is mentally unstable.

In his petition, appellant stated that there existed "a statutory basis under Minn. Stat. [§] 518.156 and Minn. Stat. [§] 518.18 to modify the Court's original Order of Custody." By order filed on June 10, 1997, the Nicollet County District Court denied appellant's motion for a change in custody. The court stated that although appellant produced a prima facie case that respondent should not have custody, he did not meet his burden of showing that custody should be transferred to him.

Appellant then brought a motion in Nicollet County for visitation with S.S.J.-V. Appellant subsequently moved to modify his visitation motion to include a request for an initial evidentiary hearing on the issue of custody. The Nicollet County District Court transferred venue to McLeod County because respondent had moved there. The McLeod County District Court appointed a guardian ad litem, and the parties filed additional affidavits. In an October 6, 1997, order denying appellant's motions, the district court determined that it lacked jurisdiction to entertain appellant's custody motion because it was identical to the previous modification motion brought by appellant in Nicollet County.

Appellant argues that the district court erred in treating his custody motion as seeking modification of a prior order under Minn. Stat. § 518.18 (1996), rather than as a request for an initial determination of custody under Minn. Stat. § 518.17 (1996 & Supp. 1997). We agree.

The parents

of a child born to a mother who was not married to the child's father * * * may, in a writing signed by both of them before a notary public and filed with the state registrar of vital statistics, state and acknowledge under oath that they are the biological parents of the child and wish to be recognized as the biological parents.

Minn. Stat. § 257.75, subd. 1 (1996). "If paternity has been recognized under section 257.75, the father may petition for rights of visitation or custody in an independent action under section 518.156." Minn. Stat. § 257.541, subd. 3 (1996). Such a proceeding "must be treated as an initial determination of custody under section 518.17." Id.

Respondent argues that section 518.18, which governs modification of a prior custody order, applies because the April 9, 1997, order in the CHIPS proceeding awarded custody of S.S.J.-V. to respondent. We disagree. The order states that custody of S.S.J.-V. is "returned" to respondent. Although the recognition of parentage executed by the parties had the effect of a paternity decree, respondent, as the child's mother, had sole custody until entry of an order granting custody to another. Minn. Stat. § 257.75, subd. 3 (Supp. 1997). Thus, the April 9, 1997, order returning custody to respondent is not an initial custody determination within the meaning of Minn. Stat. § 518.17, because it does not address the issue of custody as between the parties.

We recognize that appellant's initial custody petition in Nicollet County erroneously requested modification of custody under Minn. Stat. § 518.18. The Nicollet County District Court's June 10, 1997, order determined that appellant had not made a prima facie showing to warrant an evidentiary hearing on the motion, but the order does not address whether appellant is entitled to an initial custody determination under Minn. Stat. § 518.17. Appellant's subsequent motions, although inartfully drafted, are not identical to the original petition because appellant specifically requests an initial custody determination under Minn. Stat. § 257.541, subd. 3. Moreover, appellant alleged additional incidents of alcohol abuse by respondent that occurred subsequent to the hearing on the original Nicollet County petition.

Respondent argues that application of section 518.18 to appellant's custody motion is authorized under Morey v. Peppin, 375 N.W.2d 19 (Minn. 1985). We disagree. In Morey, the supreme court held that a custody proceeding commenced two and one-half years after conclusion of the paternity action was governed by section 518.18 because it in effect sought modification of the custody award implicitly made in the paternity action. Id. at 24. In this case, by contrast, there was no paternity proceeding in which appellant had the opportunity to seek custody, and appellant petitioned for custody promptly after the CHIPS petition was dismissed and legal custody of S.S.J.-V. was returned to respondent.

Moreover, when there is a recognition of parentage, the custody proceeding "must be treated as an initial determination of custody under section 518.17." Minn. Stat. § 257.541, subd. 3. Because the district court erred in applying Minn. Stat. § 518.18 to appellant's motion, the denial of the motion is reversed, and the matter is remanded for an initial custody determination pursuant to Minn. Stat. § 518.17.

Affirmed in part, reversed in part, and remanded.

DAVIES, Judge (concurring specially).

I concur in the judgment of the court, but write separately to express my concern about the possible misreading in other cases of the last paragraph of Minn. Stat. § 260.131, subd. 1(a) (Supp. 1997), which states that: The court may not allow a petition to proceed under this paragraph if it appears that the sole purpose of the petition is to modify custody between the parents.

It appears that this paragraph was added to prevent a parent's use of a CHIPS petition as a weapon in a custody battle. That objective is laudable and courts should use this paragraph to avoid such hostile misuse of CHIPS petitions. Nonetheless, it must not be read to bar a legitimate, good-faith CHIPS petition simply because a petitioning spouse is involved in a custody contest. The paragraph bars a petition only when the "sole purpose of the petition is to modify custody." Id. (emphasis added).