In re the Custody of A.M.W. Kelly James Wadsen, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1825

In re the Custody of A.M.W.
Kelly James Wadsen, petitioner,
Respondent,

vs.

Jennifer Maggie Rosenthal,
Appellant.

Filed October 2, 2017
Affirmed
Peterson, Judge

Anoka County District Court
File No. 02-FA-12-566

Gretchen R. Severin, Anoka, Minnesota (for respondent)

Jennifer Maggie Rosenthal, Blaine, Minnesota (pro se appellant)

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this custody-modification dispute, pro se appellant-mother argues that the district
court erred by (1) expanding the guardian ad litem’s authority beyond that permitted by
statute, (2) denying mother’s new-trial motion, (3) failing to properly apply the rebuttable
presumption against joint legal custody when domestic abuse has occurred between the

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parties and awarding father sole legal custody of their child, and (4) improperly applying
the best-interests factors. We affirm.
FACTS
The parties, who were never married, are the parents of one child, a daughter born
in 2012. A stipulat ed order for custody, parenting time, and child support was filed in
December 2013. The December 2013 or der was amended in July 2014 to require
(1) respondent-father Kelly James Wadsen to continue counseling, (2) appellant -mother
Jennifer Maggie Rosenthal to complete dialectical behavioral therapy (DBT), and (3) the
parties to conduct parenting-time exchanges at the police department and to use Our Family
Wizard (OFW) for all communication with each other.
In December 2014, father filed an ex parte motion seeking sole legal and sole
physical custody of daughter and suspension of mother’s parenting time becau se mother
had denied him parenting time since October 30, 2014, and had reported to the police that
he placed temporary tattoos on daughter’s genital area. Father alleged that mother placed
the tattoos on daughter in an attempt to interfere with his paren ting time. Mother filed an
opposing motion, requesting that the parties be required to participate in mediation and that
she be excused from completing DBT. The district court reappointed the guardian ad litem
(GAL), who had been discharged, and, followi ng a January 22, 2015 hearing, the district
court directed the GAL to conduct an independent investigation and prepare a written
report, ordered the parties to cooperate with the GAL, granted father parenting time every
other weekend and every Wednesday ov ernight, authorized the GAL to increase or
decrease either party’s parenting time, took all other issues under advisement, and

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scheduled a review hearing on February 19, 2015. In a separate order, the district court
determined that father had established a prima facie case of endangerment and ordered the
parties to be prepared to schedule an evidentiary hearing at the February 19 review hearing.
After reviewing medical records, a police report, affidavits of the parties, and OFW
exchanges between the par ties, the GAL believed that mother had placed the tattoos on
daughter in an effort to interfere with father’s parenting time. In a report filed on January
26, 2015, the GAL noted that there were many discrepancies in mother’s story and that the
information the GAL had gathered indicated that daughter was with mother when the
tattoos were placed on daughter. The GAL expressed concerns about other allegations
mother had made against father and about the fact that mother did not bring daughter to
Midwest Children’s Resource Center until one and a half months after the tattoos were
placed. The GAL also expressed concern about mother’s mental health and her failure to
follow through with court-ordered DBT.
The GAL observed daughter with father and two of her siblings on January 24, 2015.
The GAL stated:
[I]t was clear to this writer that [daughter] has a close, positive
relationship with her father and is comfortable in his home.
The meeting happened in the children’s area of the library, and
[daughter] repea tedly returned to her father’s side to ask for
water, candy, or to provide [father] with toys from the play
kitchen in the library.

The GAL expressed concern about father’s aggressive behavior, anger issues,
alcohol use, and criminal history. In June 2014, a police officer was dispatched to father’s
residence in response to a fireworks complaint. The officer arrested father because he was

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uncooperative. In the squad car, father, who had been drinking, made several threatening
comments to the officer. Father pleaded guilty to a felony terroristic -threats charge. The
GAL noted that father can be emotionally aggressive toward mother. But the GAL did not
have concerns about father’s interaction with daughter. The GAL’s report states that father
admitted making a comment about a pedophile but explained that he said it in the context
of telling mother to watch daughter so that daughter would not wander away from mother’s
home unsupervised.
The GAL recommended that father “have parenting time at all times, subject to
[mother’s] supervised parenting time” up to two times each week for three hours each time;
father abstain from all nonprescribed mood -altering chemicals, including alcohol, and
submit to urinalyses or breath analyses at the GAL’s request; both parties complete updated
psychological assessments; and both parties submit to lie-detector tests about the temporary
tattoos. Following a hearing with counsel and the GAL on February 13, 2015, the district
court adopted the GAL’s recommendations, with the exception of the recommendation that
father have temporary sole legal and physical custody. At a March 2015 review hearing,
the parties agreed about who should be appointed as the custody evaluator.
Both parties underwent psychological evaluations by Dr. James Gilbertson.
Regarding father,
Dr. Gilbertson noted that Father had a history of
antisocial behavior dating back to adolescence, including
suspensions from school and other behavioral issues, and use
of drugs and alcohol beginning around age thi rteen. Father
reported to Dr. Gilbertson that his delinquencies were related
to alcohol and drugs, and indicated that he “turns into someone
else” when drinking hard liquor. Dr. Gilbertson found that

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Father met criteria for Antisocial Personality Disorder, without
psychopathic features, which he did not consider to be a major
mental illness but rather an underlying disorder. He noted that
it appeared Father may be showing some maturation and
willingness at looking at his behavior patterns and their
consequences, especially with regard to alcohol. Dr.
Gilbertson recommended that Father continue in therapy . . . .
and abstain from all alcohol.

Regarding mother,
Dr. Gilbertson concluded that Mother does not suffer
from a major mental illness of thought, mood, perception,
judgment, or orientation and does not have a personality
disorder of type to impact parenting presence or capacity. He
noted she appeared somewhat immature generally, leading to
poor boundaries, lapses in judgment, being too trusting and
having difficulty asserting herself. He used an Unspecified
Personality Disorder diagnosis for what he viewed as passive -
aggressive maneuvering and a history of immature decision -
making. He noted that her psychological profile is not
consistent with a mother who would typically be abusive to her
children and that if she were to err in child rearing it would be
primarily related to poor judgment in the face of particular
stressful events. He also found that she did not meet diagnostic
criteria for PTSD, even though Mother’s treating therapist at
the time . . . had diagnosed Mother with PTSD.

Between October 13, 2015, and April 1, 2016, the district court conducted nine days
of evidentiary hearings on father’s motion, at which 22 witnesses testified. Th e district
court then issued a 72 -page order granting father sole legal custody and the parties joint
physical custody of daughter. The district court found that there had been a substantial
change in circumstances and that modification of custody was in daughter’s best interests.
The court granted the parties almost equal parenting time with daughter.
The district court made more than 15 pages of findings regarding the temporary -
tattoo incident. The court found:

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74. The parties’ accounts of what happened after
October 31, 2014 diverge widely. Father denies any parenting
time with [daughter] after October 30, 2014 until January 23,
2015 pursuant to court order, a claim supported by his wife,
Ms. Wadsen. Mother testified that Father had unschedule d
parenting time with [daughter] from November 2 at 6:30 p.m.
to November 3, 2014, at 6:30 p.m., which was arranged by a
telephone call to Mother’s work and is therefore not reflected
in OFW. Mother testified she permitted this additional time
because she felt bad about Father missing Halloween with
[daughter], and that she discovered the tattoos when [daughter]
returned home.

. . . .

77. The Court finds that the parties more likely than not
did occasionally communicate outside OFW. However, it does
not necessarily mean Father contacted Mother at work at Pearle
Vision on November 1, 2014 to arrange parenting time on
November 2-3, 2014.

78. Ms. Loney testified that on November 1, 2014, she
answered the phone and recognized Father’s voice asking to
speak with Mother. The caller did not identify himself. There
are no records to indicate that Father called Pearle Vision.
Father and Ms. Wadsen’s cell phone records contain no
contacts with Mother’s home or Pearle Vision. Mother argues
that Father coul d have easily called from another telephone,
but apart from her testimony and that of Ms. Loney, there is
simply no evidence Father made such a call, and it seems
unlikely given the parenting time made through OFW. It is
also unclear how Father could have known Mother was at
work, as Ms. Loney testified that Mother had been called in
that morning outside of her usual schedule due to high
customer volume.

. . . .

83. While Mother’s mother and friends provided
testimony somewhat supporting that Father could have had
parenting time from November 2-3, 2014, there is no record of
the phone call Mother claims Father made to arrange the
parenting time. It is odd that he would have chosen to contact

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Mother at work by telephone, especially when she was not
even scheduled to be there, particularly as the parties were
actively communicating on OFW. It is even more of a stretch
of the imagination that Mother would have permitted that
parenting time despite their ongoing conflict, which continued
to escalate while Mother claimed father had [daughter]. None
of the OFW messages mention this parenting time and in fact
strongly suggest that it did not occur.

The district court made specific findings on the OFW messages exchanged between
the parties from October 28, 2014, through November 7, 2014. On October 28, 2014,
father notified mother that he would be starting a new job on November 3, 2014, and that
his wife would exchange daughter by 5:00 p.m. in his place. On October 30, 2014, mother
replied that there was no need to exchange daughter if father would not be present and that
father should contact her attorney. The parties exchanged messages about Halloween on
October 31, 2014. In the morning on November 2, 2014, mother suggested that father take
daughter that Friday after work until Sunday, November 7 -9, 2014, and again indicated
that father should not have parenting time on Tuesday, November 4 if he would not be
there. Father responded that mother should be prepared to exchange daughter on
November 4. On November 2, 2014, mother notified father that she did not think daughter
should ever be with father, stating that daughter did not want to go with father and always
wanted to stay home with mother. Also on November 2, before she claims to have
discovered the tattoos, mother sent father a message about them. On November 4, 2014,
mother continued to insist that father should not have parenting time when he was working,
and mother did not show up at the exchange location where father’s wife was waiting.

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The district court found that mother’s polygraph test indicated deception and that
father’s polygraph test did not. The court also found that the results of an earlier polygraph
test arranged for and taken by mother on her own were inconclusive. But the c ourt stated
that it “place[d] little, if any[,] weight on the results of any polygraph tests.”
The district court found that mother had motivation to place the temporary tattoos
on daughter to interfere with father’s parenting time and that she placed o r caused the
temporary tattoos to be placed on daughter. The court noted that mother did not want
father’s wife caring for daughter when father was working, that mother may have been
alarmed by father’s threat to move for a custody change, that mother’s r eports about the
tattoos and whether or not she had other concerns were inconsistent, and that reports about
other concerns were supported by only vague allegations.
The district court also cited Detective Patterson’s testimony.
126. . . . Detective Patterson noted inconsistencies in
Mother’s report of the timeline, which he testified is important
in such investigations and found it suspicious that she did not
report the tattoos until at least three days after discovering
them. . . . Detective Patterson also noted that temporary tattoos
generally do not last very long, particularly if the area is
washed. He viewed the photos of the temporary tattoos taken
November 7, 2014, in which the temporary tattoos still
appeared vibrant despite Mother’s claim s he originally
discovered them November 3, 2014, four days earlier.

The court stated:
148. Although Mother claims Father had parenting time
November 2 -3, 2014, there is no documentary evidence
indicating that he did despite the flurry of OFW messages .
Mother’s friend Bill Walsh testified he witnessed an exchange
of [daughter] on November 2, 2014, but was unable to identify
the man present at the exchange any more specifically than as

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a male, even with Father in the courtroom. Ms. Jackson
testified t hat she did not see [daughter] in Mother’s home
November 3, 2014, but also believed that R.R. was with his
Father, which Mr. Rosenthal testified credibly that he was not.
This reduces the credibility of Ms. Jackson’s testimony. Ms.
Odland-Thielen, Ms. Burchard, and Z.R. did see the tattoos in
Mother’s home on November 3, 2014. While Ms. Burchard
believed [daughter] had returned from parenting time, there
appears to be no basis for her belief apart from Mother’s claim.

. . . .

152. By contrast, Father has consistently maintained
that he did not have parenting time after October 30, 2014, had
no parenting time November 2 -3, and was not responsible for
the temporary tattoos. When the detective initially contacted
him, he asked Father only generall y about tattoos on
[daughter]. Father responded regarding the May 2014 tattoos,
strongly suggesting they were the only temporary tattoos he
was aware of.

The court also found that the OFW messages, “which unlike memory cannot fade or be
influenced,” were “the most reliable evidence” and that they contained no suggestion that
father had parenting time on November 2-3, 2014.
The GAL recommended that father be granted sole legal and sole physical custody
of daughter. The custody evaluator recommended that father be granted sole legal and sole
physical custody of daughter. The custody evaluator did not believe that placing the
temporary tattoos on daughter alone justified a custody change but that mother’s decision
to place them “with the specific intent to interfere with father’s parenting time rose to the
level of endangerment.” The custody evaluator “found that both parents were able to meet
[daughter’s] needs under the best interest factors, the most important of which were the
history of domestic abuse between the parties, the parties’ mental health, sibling

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relationships, and Father’s criminal history.” The custody evaluator “observed that Father
was open to contact between [daughter] and her siblings on Mother’s side.” “She also
observed that Father did not make excuses about his faults or past.” On the other hand,
“Mother communicated a great deal but gave little information and failed to directly answer
questions, which resulted in [the custody evaluator] feeling that she had little information
about Mother’s potential issues and that Mother was not effectively addressing those
issues.”
The district court awarded the parties joint physical custody of daughter and
awarded father sole legal custody. The district court denied mother’s new -trial motion.
Mother appealed. Father did not file a brief, and this court directed the appeal to proceed
under Minn. R. Civ. App. P. 142.03.
D E C I S I O N
I.
Mother argues that the district court erred by expanding the GAL’s authority beyond
that permitted by statute. The statute states:
A guardian ad litem shall carry out the following
responsibilities:
(1) conduct an independent investigation to
determine the facts relevant to the situation of the child and the
family, which must include, unless specifically excluded by the
court, reviewing relevant documents; meeting with and
observing the child in the home se tting and considering the
child’s wishes, as appropriate; and interviewing parents,
caregivers, and others with knowledge relevant to the case;
(2) adv ocate for the child’ s best interests by
participating in appropriate aspects of the case and advocating
for appropriate community services when necessary;

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(3) maintain the confidentiality of information
related to a case, with the exception of sharing info rmation as
permitted by law to promote cooperative solutions that are in
the best interests of the child;
(4) monitor the child ’s best interests throughout
the judicial proceeding; and
(5) present written reports on the child ’s best
interests that include conclusions and recommendations and
the facts upon which they are based.

Minn. Stat. § 518.165, subd. 2a (2016).
Mother argues that the GAL exceeded her authority by unilaterally modifying
mother’s parenting time while father’s motion was pending, direct ing father to change
daughter’s doctor and enroll her in a different preschool, weighing in on financial matters,
and directing the parties to obtain polygraphs. The only time that the GAL went beyond
making recommendations was when she modified mother’s parenting time. That issue,
however, is now moot because the district court decided father’s motion and granted
mother parenting time. See Limmer v. Swanson , 806 N.W.2d 838, 839 (Minn. 2011)
(stating that an issue is “moot when an event occurs that makes a decision on the merits
unnecessary or an award of effective relief impossible” (quotation omitted)).
Mother also argues that “[t]he expansive authority that the GAL displayed . . .
prejudiced the case against [mother] with long-lasting effects.” The district court made six
pages of detailed findings on the GAL’s role in this proceeding. The district court then
found:
183. The Court finds that the GAL has conducted
herself in an appropriate and professional manner in a very
difficult proceeding that has undoubtedly consumed a great
deal of her time and energy. The GAL’s reports and testimony
reflect a careful consideration of the facts and an adherence to

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her responsibility to advocate for the best interests of
[daughter] and Mother’s concerns about bias are unfounded.

This finding is supported by record evidence and is not clearly erroneous. See Vangsness
v. Vangsness , 607 N.W.2d 468, 472 (Minn. App. 2000) (explaining procedure for
determining whether factual findings are clearly erroneous).
II.
Mother argues that the district court should have granted her motion for a new trial
because polygraph-test results are not admissible in Minnesota. See State v. Opsahl , 513
N.W.2d 249, 253 (Minn. 1994) (“Results of polygraph tests . . . are not admissibl e in
Minnesota in either criminal or civil trials.”). A proceeding to modify custody is a “special
proceeding,” and a motion for a new trial in a post -decree modification proceeding is not
authorized. Huso v. Huso, 465 N.W.2d 719, 720 -21 (Minn. App. 199 1). Also, because
the district court specifically stated that it “place[d] little, if any[,] weight on the results of
any polygraph tests,” any error in admitting the results was not prejudicial. See Midway
Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating
that to prevail on appeal, a party must show that the district court erred and that the error
was prejudicial).
III.
Mother argues that the district court erred by failing to properly apply the rebuttable
presumption against joint legal custody when domestic abuse has occurred between the
parties and by awarding sole legal custody to father. A district court has broad discretion
in determining custody matters. Goldman v. Greenwood , 748 N.W.2d 279, 282 (Minn.

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2008). Our review of custody determinations is limited to whether the district court abused
its discretion by making findings that are not supported by the evidence or by improperly
applying the law. Silbaugh v. Silbaugh , 543 N.W.2d 639, 641 (Minn. 1996). When
determining whether findings are clearly erroneous, an appellate court views the record in
the light most favorable to the district court’ s findings a nd defers to the district court’ s
credibility determinations. Vangsness, 607 N.W.2d at 472. “We cann ot reweigh the
evidence presented to the [district] court.” Id. at 475.
When domestic abuse has occurred between the parents, a court shall use a
rebuttable presumption that joint legal or joint physi cal custody is not in the child’ s best
interests. Minn. Stat. § 518.17, subd. 1(b)(9) (2016). To determine whether the
presumption is rebutted, a court must consider (1) “the nature and context of the domestic
abuse” and (2) “the implications of the domestic abuse for parenting and for the child ’s
safety, well-being, and developmental needs.” Id.
The district court found that father was convicted of misdemeanor domestic assault
against mother in 2011 when mother was pregnant with daughter. Father denied physically
assaulting mother but admitted that he probably caused her fear. The district court found
that father and his current wife testified credibly that no domestic abuse has occurred in
their relationship; both incidents of domestic abuse reported by mother occurred before
daughter was born , but “the history of domestic abuse between the parties continues to
affect their relationship and could thereby affect Father’s relationship with [daughter]”;
alcohol was involved in the domestic-abuse incidents and “[f]ather’s continued abstinence
is a significant factor in the management of the risk that [daughter] will be negatively

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affected by the conflict and history of domestic abuse between the parties”; and a potential
exists that daughter could be negatively affected by the domestic abuse, but there is no
evidence that she has been affected by it and, therefore, the domestic -abuse factor did not
weigh in favor of either party.
Mother argues that the district court did not properly consider father’s mental health.
The district court made three -and-a-half pages of findings on father’s mental health, his
progress in therapy, his chemical -dependency issues, his criminal history, and his
prescription medications. The district court did not err in applying the rebuttable
presumption or abuse its discretion in awarding father sole legal custody of daughter.
IV.
Mother’s challenge to the district court’s findings on the best -interests factors asks
this court to disregard the district court’s credibility determinations. This court defers to
the district court’s credibility determinations. Vangsness, 607 N.W.2d at 472. This court
will not “disturb findings of fact based on conflicting evidence . . . unless [the findings are]
manifestly and palpably contrary to the evidence as a whole.” In re S.G., 828 N.W.2d 118,
127 (Minn. 2013) (quotation omitted). The district court made more than 22 pages of
detailed findings on daughter’s best interests, which are supported by record evidence and
are not manifestly and palpably contrary to the evidence as a whole.
Affirmed.