Patrick J. Leary, Quarnstrom, Doering, Pederson, Leary & Murphy, P.A., 109 S. Fourth St., Marshall, MN 56258 (for Appellant)

Daniel L. Giles, Christianson, Stoneberg, Giles & Stroup, P.A., 300 O'Connell St., Marshall, MN 56258 (for Respondent)

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Schultz, Judge.[*]

Appellant challenges the district court's refusal, after an evidentiary hearing, to grant appellant's motion for a change of custody. Because we see no abuse of discretion in the district court's decision, we affirm.

In July 1993, respondent married Mark Mattke. She moved with him to Owatonna, Minnesota, in April 1995 and lived there until June 1996, when she separated from Mattke and commenced dissolution proceedings.

During respondent's marriage to Mattke, there were four reported instances of abuse or neglect of the children. Three instances were investigated by Lyon County Child Protection Services and found to be unsubstantiated. The fourth instance was reported to the Steele County Human Services Department. The report alleged that B.C. received a fist-sized, black bruise on his upper chest when Mark Mattke dragged him through a doorway exiting the house. A law enforcement investigation substantiated the incident.

A week after respondent filed for divorce from Mattke, appellant filed a motion for modification of custody. Appellant's request for an immediate change of custody was denied; an evidentiary hearing was scheduled, and a guardian ad litem (GAL) was appointed. After the evidentiary hearing, the district court denied appellant's motion for change of custody.

Appellant argues that even if Mattke no longer lives with respondent, the threat to the physical or emotional health of the children has not vanished. In addressing this issue, the court heard conflicting testimony from the GAL and from the children's school psychologist.

The GAL conducted four interviews with the children during which they stated a preference for living with appellant.[1] The GAL also reported that it was apparent that the children had been slapped and spanked on occasion by respondent. In addition, the GAL noted that the children expressed discomfort with respondent moving into a new relationship almost immediately after her divorce from Mattke. The GAL recommended that the court strongly consider the children's preference for living with appellant, based on the maltreatment they received from Mark Mattke and questions as to the stability of respondent's home due to her new relationship.

Respondent introduced the testimony of Dr. Jerome Zetah, a licensed school psychologist in the Owatonna School District. It was his opinion that S.C. was not old enough or mature enough to express a preference and that B.C. qualified his preference in such a way that Dr. Zetah felt B.C. did not want to make a choice. In addition, Dr. Zetah stated that the children would not be in any danger in respondent's home, but could be subject to significant changes if their custody status were altered.

Reports submitted to courts for the purposes of custody review are advisory only, subject to the discretion of the court. Stanford v. Stanford, 266 Minn. 250, 255, 123 N.W.2d 187, 191 (1963). The district court heard conflicting testimony, judged the credibility of the witnesses, and determined that there was insufficient evidence to warrant a change of custody. On this conflicting record, the district court's ruling was not an abuse of discretion. See Doren v. Doren, 431 N.W.2d 558, 561 (Minn. App. 1988) (where conflicting evidence could have supported a modification of custody, this court affirmed refusal to modify custody because it is the trial court's duty to weigh conflicting evidence and there is no abuse of discretion "[s]o long as there is evidence to support the trial court's decision").

Appellant also contends that the district court misinterpreted the language of Minn. Stat. § 518.18(d)(iii) (1996), stating that to modify custody, a court must find:

(iii) The child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

Id. (emphasis added).

Appellant argues that "[t]he child's present environment" refers to the time when the motion is filed instead of when the hearing is held. Here, in the interim between the filing of appellant's motion and the evidentiary hearing, respondent brought divorce proceedings against the abusing stepfather and removed him from the home.

The court found:

That the children are now out of danger of physical harm by the removal of the current husband from [respondent's] home and a change of custody is no longer necessary to serve the best interest of the children. The children are no longer in an environment that endangers their physical or emotional health or impairs their emotional development.

Appellant offers no support for the view that a court must base its decision on the conditions in the custodial home at the time the motion is filed. Moreover, case law supports the contrary position. See, e.g., Hreha v. Hreha, 392 N.W.2d 914, 917 (Minn. App. 1986) (denying a motion to change custody because testimony showed that the custodial parent had recovered from mental illness and the child's well-being was no longer an issue at the time of the hearing).

Appellant argues that basing a custody determination on the situation at the time of the hearing is analogous to basing a primary caretaker determination on the situation at the time of separation. This argument is unpersuasive. The primary caretaker determination is to be made as of the date of separation only if the separation date is "reasonably close" to the trial date. Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988). The emphasis in deciding custody is on what will be the best environment for the child in the present and future. The district court correctly interpreted the word "present" in Minn. Stat. § 518.18(d)(iii) to apply to the child's environment at the time of the evidentiary hearing.

The district court's denial of appellant's motion was not an abuse of discretion.

Affirmed.

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

[ ]¹In expressing their preferences, S.C and B.C. stated that it would be fair for them to spend the next five years with their father since they spent the last five years with their mother. The court determined this statement to be evidence of coaching on behalf of appellant because it was too calculated for children their age. Though we question the court's determination that children aged eight and ten are not independently capable of such rationalization, functionally, the district court made the determination that the children's statements were not credible. Generally, this court defers to district court credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).