This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-87

 

Aaron Johnson, petitioner,

Appellant,

 

vs.

 

Kimberly Letrice Murray,

f/k/a Kimberly Letrice Smith,

Respondent.

 

Filed August 5, 2003

Reversed and remanded
Klaphake, Judge

 

Benton County District Court

File No. F4-99-1090

 

Aaron Johnson, 10734 West Lake Road, Rice, MN 56367 (pro se appellant)

 

Kimberly Letrice Murray, address unknown (pro se respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In this custody and paternity proceeding, pro se appellant Aaron Johnson challenges the district court’s latest order on remand from the supreme court, Johnson v. Murray, 648 N.W.2d 664 (Minn. 2002).  Pro se respondent Kimberly Letrice Murray, a/k/a Kimberly Letrice Smith, has not participated in these proceedings.  In fact, appellant has not seen or heard from her or the child since September 1999.

            Because the district court failed to make findings regarding the child’s best interests and because a custody order is required to have such findings, we reverse and remand.

FACTS

            The facts of this case are fully set out in the supreme court’s decision and in two previous decisions from this court.  See Johnson v. Murray, 648 N.W.2d 664 (Minn. 2002) (“Murray III”), rev’g, Johnson v. Murray, No. C7-01-480, 2001 WL 881483 (Minn. Aug. 7, 2001) (“Murray II”); Johnson v. Murray, No. CX-99-2173, 2000 WL 1146338 (Minn. App. Aug. 7, 2000) (“Murray I”).

            In Murray III, the supreme court held that the district court had jurisdiction over appellant’s custody petition under the Uniform Child Custody Jurisdiction Act (UCCJA), in part because it is in the child’s bests interests “that some forum be available to adjudicate custody because, under the facts here, there is no other forum that can and will adjudicate custody.”  Murray III, 648 N.W.2d at 671.  The court determined that the district court abused its discretion in failing to make findings regarding the best interests of the child and that such findings are mandated by the UCCJA.  Id.  The supreme court, therefore, reversed and remanded the matter to the district court for further proceedings on the custody petition.  Id. at 672-73.

            On remand, the district court determined that appellant “is adjudicated to be the father of the child,” but that “[c]ustody of the minor child should remain with the mother * * * who has had sole legal and physical custody of the child.”  The court concluded that the custody of the child “shall remain with [respondent] until modified by further court order based on sufficient, relevant evidence.”  The court reserved visitation issues “until such time as the Court has sufficient, relevant evidence to make a decision and an appropriate motion has been served and filed.”  The court denied appellant’s motion for default judgment, concluding that there was no evidence to show that respondent had actual notice or knowledge of the continuing proceedings.

            This, appellant’s third appeal, followed.

D E C I S I O N

I.

            Appellant argues that the district court failed to consider the child’s best interests when it awarded custody of the child to respondent.  He argues that the district court abdicated its responsibility to make particularized findings based on credible, reliable evidence presented at an evidentiary hearing.  He criticizes the district court for finding that “[m]aking a custody determination * * * is impossible with information this old” and that “[d]omestic abuse has not been raised as an issue at this time.”  We agree with appellant that the district court abused its discretion by failing to make findings on the child’s best interests.

            When determining custody, a district court must consider the best interests of the child in view of the statutory factors set out in Minn. Stat. § 518.17, subd. 1 (2002).  A court must “seriously examine any allegations of child abuse before determining custody.”  Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993) (citation omitted), review denied (Minn. Oct. 28, 1993).  Where a party fails to appear and the court never has an opportunity to reach an informed decision regarding allegations of abuse, the court “ha[s] a duty to uncover reliable evidence to show the best interests” of the child.  Id. (quotation omitted).  We therefore conclude that the district court abused its discretion by failing to attempt to “uncover reliable evidence” so that it could make particularized findings regarding the child’s best interests.[1]

            Appellant claims that it was within the district court’s jurisdiction to require or order respondent’s appearance at the evidentiary hearing.  We agree.  The UCCJA was repealed in 1991 and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act, Minn. Stat. §§ 518D.101-.317 (2002).  This chapter contains provisions authorizing the issuance of orders or warrants to insure a party’s or a child’s appearance.  See, e.g., Minn. Stat. §§ 518D.210, .311.  Appellant has an obligation to submit “reasonably ascertainable” information to the court as to the child’s “present address or whereabouts,” Minn. Stat. § 518D.209(a), but the court must still attempt to uncover reliable, current evidence.  Thus, on remand, the court is under an obligation to issue appropriate orders to insure current information is gathered on the child’s circumstances.

            Appellant further claims that he presented prima facie evidence of domestic child abuse, as shown in his requests for admissions, which respondent never answered and which the court should have deemed admitted under Minn. R. Civ. P. 36.01.  In Murray I, this court directed the district court to “reconsider appellant’s motion to deem the requests admitted.”  Murray I, 2000 WL 1146338, at **5.  The court, however, has failed to address these admissions in any of its subsequent orders.  As appellant argues, these admissions tend to support a finding that the child is endangered and that it is not in the child’s best interests to remain in respondent’s custody.  On remand, if the district court is unable to obtain current information regarding the child, these admissions constitute evidence that the court must consider when making its custody determination.

II.

            Appellant challenges the district court’s failure to make certain findings in connection with its paternity order, as required by Minn. Stat. § 257.66 (2002) (requiring district court to issue new birth record and to include provisions in paternity order concerning duty of support, custody of child, and parenting time).  The district court here awarded custody to respondent and reserved the issue of visitation, or parenting time, “until such time as the Court has sufficient, relevant evidence to make a decision and an appropriate motion has been served and filed.”  On remand, the district court must insure that its paternity order includes the findings required by this statute.

            Appellant also challenges the district court’s failure to include notice provisions as required by Minn. Stat. § 518.177 (2002) (“Every court order * * * concerning custody of or parenting time or visitation with a minor child shall contain the notice set out in section 518.68, subdivision 2.”).  These notices involve parental rights of access to the child, remedies and penalties for wrongful denial of parenting time, and a warning that deprivation of custodial or parental rights is a felony.  Minn. Stat. § 518.68, subd. 2 (2002).  On remand, the district court is directed to include these notices in any custody order that it may issue.

III.

            Finally, appellant argues that if this case is remanded, it should be assigned to a different district court judge and possibly be moved to a different county.  This case is currently venued in Benton County because appellant lives there.  Appellant suggests that Hennepin County might be less biased and more appropriate, particularly because respondent and the child were located there at one point.

            Minn. R. Civ. P. 63.03 provides that a party may seek removal of a judge if the party makes an affirmative showing of the judge’s prejudice or implied or actual bias.  See Matson v. Matson, 638 N.W.2d 462, 469 (Minn. App. 2002).  To date, appellant has not filed such a motion.

            Reversed and remanded.