This opinion will be unpublished and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

C9-98-2073

In the Matter of:

Clayton Jerome Johnson, petitioner,

Respondent,

vs.

Wendy Lynn Humfeld,

Appellant.

Filed May 18, 1999

Remanded

Davies, Judge

Houston County District Court

File No. F898444

Lee Ann Riehle, Streater & Murphy, P.A., 64 East Fourth Street, Winona, MN 55987 (for respondent)

Howard K. Kruger, 301 West Broadway, Winona, MN 55987 (for appellant)

Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.

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

DAVIES, Judge

In a protective order, respondent was granted custody of appellant's minor child. Appellant challenges the custody award because respondent had not been adjudicated the father of the child and because the district court did not, before awarding custody, make findings on the best interests of the child. We remand for findings.

FACTS

Respondent Clayton Jerome Johnson petitioned for a protective order against appellant Wendy Lynn Humfeld under the Minnesota Domestic Abuse Act, Minn. Stat. § 518B.01 (1998). In October 1998, the court issued an order for protection and also granted respondent temporary custody of K.M.J. The parties have never been married, and respondent's paternity has not been established in a court proceeding.

Appellant asked the court to amend its order to grant custody to her. The parties submitted additional affidavits and evidence, including K.M.J.'s birth certificate, which named respondent as father, and a Wisconsin Statement of Paternity form, in which appellant and respondent recognized respondent's paternity. The district court denied appellant's motion for an amended order and this appeal followed.

D E C I S I O N

In a December 1998 order, this court construed this appeal as being from the October protective order granting temporary custody to respondent. In a domestic abuse action, such as this, the district court may award temporary custody of a minor child to one of the parties. Minn. Stat. § 518B.01, subd. 6(a)(4) (1998). A temporary custody order will not be overturned absent an abuse of discretion. See Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (noting that relief is in court's discretion).

I.

Appellant argues that, because respondent had not been adjudicated the father of K.M.J., the district court abused its discretion by granting him custody. But both parties had, under oath, signed a Wisconsin Statement of Paternity form that named respondent as K.M.J.'s father, and the record indicates that respondent took K.M.J. into his home and held her out as his own child. Also, respondent was named the father on K.M.J.'s birth certificate.[1] All three of these facts create a presumption that respondent is K.M.J.'s father. See Minn. Stat. § 257.34, subd. 1(c) (1998) (one named in acknowledgement of paternity signed under oath is presumed father); Minn. Stat. § 257.55, subd. 1(d) (1998) (one who accepts child into home and holds out as own is presumed father); Minn. R. Evid. 803(9) (record of vital statistics, such as birth certificate, is evidence for truth of its contents).

When a child's parents are not married, Minn. Stat. § 257.541, subd. 1 (1998), provides that the mother has sole custody until paternity is established. Appellant argues that this bars the district court from granting custody to respondent because there has not been a court proceeding that determined respondent is K.M.J.'s father. But that section is intended simply to provide a pragmatic presumptive rule for temporary custody until someone establishes paternity. And a man can establish paternity merely by offering proof that he is entitled to one of the statutory presumptions of paternity. See, e.g., Rutanen v. Olson, 475 N.W.2d 100, 102 (Minn. App. 1991) (father established paternity by holding children out as his own). Here, respondent established three presumptions of paternity, and any one is sufficient to support the custody award.

II.

The district court found that K.M.J.'s safety required that temporary custody be granted to respondent. Appellant argues that she contested custody, and that the court abused its discretion by awarding custody without addressing the statutory factors to be applied in determining the best interests of the child. We agree.

Findings on the statutory factors are required when a custody award is made in a domestic abuse proceeding and custody is disputed. Minn. Stat. § 518B.01, subd. 6(a)(4).[2] Because we cannot review the propriety of this disputed custody determination without findings on the statutory factors, we remand.

K.M.J. will remain in the custody of respondent until the district court makes findings on the statutory factors. See In re Petition of Giblin, 304 Minn. 510, 523, 232 N.W.2d 214, 222 (1975) (injunction against exercising custody rights remained in place on remand until district court dissolved injunction or resolved underlying custody issue).

Remanded.

[1] The birth certificate and Statement of Paternity were not submitted until after appellant moved to amend the order for protection. But respondent mentioned both in his petition for the protective order.

[2] The rule requiring findings is not applicable if custody is not disputed: "Except for cases in which custody is contested, findings under section 257.025, 518.17, or 518.175 are not required." Minn. Stat. § 518B.01, subd. 6(a)(4) (emphasis added).