Margaret K. Erickson, Southern Minnesota Regional Legal Services, Inc., 421 Tenth Street, Worthington, MN 56187 (for appellant)

Considered and decided by Amundson, Presiding Judge, Anderson, Judge, and Holtan, Judge.[*]

Appellant Kristi Friese challenges the district court's dissolution judgment and decree awarding physical custody of the parties' two minor children to respondent Randy Friese. Appellant argues the district court abused its discretion and made clearly erroneous determinations. We affirm.

This action arises out of a dissolution judgment and decree awarding physical custody of the parties' sons, ages five and seven, to respondent. The district court granted respondent primary physical custody of the two boys with liberal and reasonable visitation by appellant. Both parents have had chemical dependency problems. The family history reveals spousal abuse by both parties, but no abuse of the children.

After the parties separated, the children initially lived with appellant and changed schools, but both children seemed to adjust well. Appellant is very involved with the boys' education, bringing notebooks to their teachers every day, and collecting the notebooks and reviewing them every night. She also sends a packet with the boys to give to respondent on the weekends, which includes a note on how the boys are doing in school and explaining any new disciplinary techniques. One of the boys has Attention Deficit Hyperactivity Disorder (ADHD) and she is very involved in monitoring his medication with his teachers. Appellant has been in counseling to deal with her alcohol problem, her abusive relationship with her husband, and to learn to deal with the problems involved in raising a child with ADHD. Her therapist testified that appellant is a very good mother.

Respondent built a sandbox and swing for the boys, and the boys seem to be very comfortable and happy at his residence. He has increased his understanding of the children's needs and made an effort to make better disciplinary choices. Although he admits he has problems with anger management, he states that he has made progress in this area. Respondent has taken an interest in the boys' school and has learned to handle the medication needed for his son's ADHD. After the district court's decision awarding respondent primary physical custody of the boys, appellant moved for amended findings or a new district. Both motions were denied.

The district court has broad discretion when making child custody decisions. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). When determining child custody, the court must weigh the numerous factors laid out in Minn. Stat. § 518.17, subd. 1(a) (1998), to determine the best interests of the child.[1] Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1994). Courts may not rely on one factor to the exclusion of all others. Minn. Stat. § 518.17, subd. 1(a).

A district court's findings of fact will be reversed only if, upon review of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made. In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) review denied (Minn. Aug. 16, 1993). Additionally, the appellate court must examine the evidence in the light most favorable to the district court's findings. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).

Appellant contends that the evidence does not support the district court's custody determination. Of the 13 "best interests" factors the district court reviewed to determine physical custody of the two minor children, 5 - 10 and 13 seem to include the decisive findings. In her argument, appellant asserts that six of these seven factors were improperly assessed by the district court. Appellant challenges the district court's findings with respect to the following: (1) the guardian ad litem's report that respondent has become the psychological caretaker of the children; (2) its failure to make a finding regarding the children's relationship to appellant's extended family; (3) its finding that there was evidence that the boys had difficulty adjusting to the move; (4) its finding that

appellant had not established roots in Atwater; (5) its finding that respondent has sought an AA sponsor; and (6) its finding that appellant has not shown as much flexibility as respondent regarding visitation.

Appellant first argues that the district court improperly found that the guardian ad litem reported that respondent has become the children's psychological caretaker. The guardian ad litem did not determine that respondent was the psychological caretaker. We conclude that this finding is in error.

Appellant also challenges the district court's failure to make a finding regarding the children's relationship to her extended family. It is difficult to judge the consequences of the failure to make a finding regarding extended family, but the district court seems to rely on the fact that respondent is supported by his family. While, there is evidence in the record that the guardian ad litem relied only on information that was in the court file and was not quite fair in her determination regarding appellant's extended family, this determination was not clearly erroneous.

Appellant next challenges the district court's finding that there was evidence that the boys had difficulty adjusting to the move and that she does not have established roots there. With respect to these factors, the evidence seems to favor appellant because there was no specific testimony that the children had more trouble in their new home, and there is some contradictory evidence. The guardian ad litem testified that "they sounded like they were doing fine," and the social worker at the school said she did not think that the children were going through any unusual problems. Further, appellant's parents do live nearby. However, while the evidence establishes that this determination was incorrect, the record supports the a finding that the boys had more support from respondent's extended family and that they were better off in their old home.

Appellant also disputes the district court's finding that respondent has sought an AA sponsor. Respondent acknowledges that the record does not support this finding and it is in error. The record also indicates that appellant has not maintained sobriety and that she uses alcohol with her boyfriend, however, it must be noted that there is no indication that her boyfriend has a problem with alcohol.

Finally, appellant argues that the district court improperly determined that appellant has not shown as much flexibility as respondent regarding visitation. Based on the evidence in the record on this issue, it seems both parents have some problems communicating over visitation because each one wants to be in control. There is no evidence, however, that the district court's finding here was erroneous.

We defer to the district court to weigh all of these factors, along with ascertaining the credibility of the witnesses. It is not the function of the reviewing court to second-guess and substitute its judgment for that of the district court. State v. Halverson, 373 N.W.2d 618, 621 (Minn. App. 1985); Ayers, 508 N.W.2d at 521. We conclude that while the district court's findings are not without error, evidence in the record supports the district court's decision that respondent can provide the boys with a stable home.

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.

[1] Minn. Stat. § 518.17, subd. 1(a) provides:

The best interests of the child. (a) "The best interests of the child" means all relevant factors to be considered and evaluated by the court including:

(1) the wishes of the child's parent or parents as to custody;
(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
(3) the child's primary caretaker;
(4) the intimacy of the relationship between each parent and the child;
(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
(6) the child's adjustment to home, school, and community;
(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(8) the permanence, as a family unit, of the existing or proposed custodial home;
(9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363.01, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;
(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
(11) the child's cultural background;
(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents* * *; and
(13) except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

The court may not use one factor to the exclusion of all others. The primary caretaker factor may not be used as a presumption in determining the best interests of the child. The court must 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.