In re the Custody of: A. N. M. L.

This opinion will be unpublished and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
A17-1121

In re the Custody of: A. N. M. L.

Jake Robert Lockwood, petitioner,
Respondent,

vs.

Morgan Nicole Nybeck,
Appellant.

Filed April 9, 2018
Affirmed
Bjorkman, Judge

Anoka County District Court
File No. 02-FA-14-1386

Jake Lockwood, East Bethel, Minnesota (pro se respondent)

Erik F. Hansen, Patrick C. Burns, Elizabeth M. Cadem, Burns & Hansen, P.A.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant-mother challenges the modification of legal custody and parenting time,
arguing that the district court abused its discretion by (1) modifying legal custody without
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adequate evidentiary support or consideration of the applicable factors; (2) modifying
parenting time to a schedule neither party requested; and (3) sua sponte designating father’s
residence as the child’s primary residence. We affirm.
FACTS
Appellant Morgan Nybeck (mother) and respondent Jake Lockwood (father) are the
parents of one child, born in 2014. The parties never married, but they signed a recognition
of parentage and father’s name appears on the child’s birth certificate.
Father petitioned to establish custody and parenting time. On August 5, 2015, the
district court awarded the parties joint legal custody and awarded mother sole physical
custody, subject to father’s increasing parenting time.1 But it did so cautiously, noting the
parties’ already extensive history of conflict, including mother’s domestic abuse toward
father during parenting-time exchanges. The district court reasoned that, while mother’s
domestic abuse warrant s a presumption of sole legal custody to father, a sole -custody
arrangement could be detrimental because “[t]he label of custodian is likely to be used by
either party as a means to deprive the other parent of their proper role in the child’s life.”
The district court de termined that joint legal custody would best afford both parents the
ability to “exercise an active and equal role in [the child’s] life.” The district court
repeatedly emphasized that joint legal custody means the parties have “equal rights and
responsibilities” and that if they “fail to cooperate in parenting [the child], either party may
make a motion to modify legal custody.”

1 The order provided for increases in father’s parenting time in September 2015 an d
February 2017, up to 6 overnights every 14 days.
3
Despite the district court’s careful direction, t he parties’ conflict continued
unabated. Mother repeatedly denied father paren ting time and refused him access to the
child’s medical and childcare information.
On March 31, 2016, father moved to modify the custody order, citing mother’s
denials. Father requested sole legal custody, joint physical custody, and additional
parenting time. Mother opposed the motion. After an evidentiary hearing, the district court
found that mother persistently and willfully denied or interfered with father’s parenting
time and access to information concerning the child, from immediately after the in itial
custody order through the evidentiary hearing, “creating a hostile emotional environment”
for the child. The district court awarded father sole legal custody, accepted the parties’
agreement to joint physical custody, designated father’s residence a s the child’s primary
residence, and modified parenting time to an equal alternating-week schedule. The district
court subsequently amended its order , adding a provision that “[a]ll existing orders not
inconsistent with this Order shall remain in full force and effect.” Mother appeals.
D E C I S I O N
I. The district court did not abuse its discretion by modifying legal custody.
A district court has “broad discretion in determining custody matters.” Goldman v.
Greenwood, 748 N.W.2d 279, 282 (Minn. 2008) (quotation omitted) . On appeal, our
review of a custody modification is “ limited to whether the district court abused its
discretion by making findings unsupported by the evidence or by improperly applying the
law.” Id. at 281 -82. We defer to a distric t court’s findings unless they are clearly
erroneous. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000). A finding
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is not clearly erroneous merely because the record might support a different finding; the
party challenging the finding must show that the record, viewed in the light most favorable
to the finding, requires the definite and firm conviction that a mistake was made . Id. at
474.
A district court may modify a prior custody order based on endangerment only if it
finds that (1) the circumstances of the child or the parties have changed, (2) modification
is necessary to serve t he best interests of the child, (3) the child’ s present environment
“endangers the child’ s physical or emotio nal health or impairs the child’ s emotional
development,” and (4) the harm likely to be caused by the modification is outweighed by
its advantages to the child . Minn. Stat. § 518.18(d)(iv) (2016); see also Minn. Stat.
§ 257.541, subd. 3 (2016) (applying chapter 518 to custody and parenting-time awards for
unmarried parents). The party seeking a custody modification bears the burden of
establishing these factors, and the district court must make specific findings addressing
each. Crowley v. Meyer, 897 N.W.2d 288, 293-94 (Minn. 2017).
Mother argues that the district court’s decision is deficient with respect to all four
custody-modification factors. We address each one in turn.
Changed Circumstances
To warrant custody modification, t he change in circumstances must have occurred
since the original custody order; “it cannot be a continuation of conditions existing prior to
the order.” Spanier v. Spanier , 852 N.W.2d 284, 288 (Minn. App. 2014) (quotation
omitted). In determining whether there has been such a change of circumstances, t he
district court should consider “unwarranted denial of, or interference with, a duly
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established parenting time schedule ,” Minn. Stat. § 518.18(d), though such interference
generally is not “an independently sufficient basis to modify custody,” Szarzynski v.
Szarzynski, 732 N.W.2d 285, 293 (Minn. App. 2007).
Mother first contends that the record does not support the district court’s finding
that she willfully and persistently denied or in terfered with father’s parenting time. We
disagree. Father’s testimony and hundreds of pages of the parties’ written communications
amply support the detailed findings that mother partially or entirely denied father parenting
time at least 15 times during the 18 months between the initial custody order and the
hearing on father’s motion. Mother’s insistence that her actions were not willful because
she was motivated only by her desire to care for the child rings hollow. Her stated desire
to care for the child does not trump father’s desire to do so—the record shows both parties
are equally capable of providing appropriate care for the child. And the record belies her
claim that she acted only out of concern for the child’s needs. Mother repeatedly refused
to timely communicate with father about the child’s health, refused to cooperate with
father’s requests for compensatory parenting time , and unreasonably denied father his
parenting time even when the child’s health was not a factor . On one occasion, she made
arrangements with father’s mother without his consent, depriving father of parenting time
on Christmas Eve.2

2 Mother also argues that father ’s willful-interference claims are not credible because it
was father who acted unreasonably. In weighing the disputed evidence, t he district court
noted both parties’ “poor judgment .” To the ext ent the court credited father over mother,
we will not disturb that decision. Vangsness, 607 N.W.2d at 472.
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Nor are we persuaded that mother’s denial of parenting time was not persistent
simply because the district court found only one instance of denial in the 11 months prior
to the evidentiary hearing. Mother denied father parenting time more than a dozen times
in less than seven months between the initial custody order and father’s March 2016 motion
to modify custody, and denied him parenting time again shortly before the hearing on that
motion. She also unilaterally changed the location of parenting-time exchanges. On this
record, the district court did not clearly err by finding that mother willfully and persistently
denied and interfered with father’s parenting time.
Mother next asserts that the parties’ conflicts over parenting time do not warrant
custody modification because they are neither a changed circumstance nor an
independently sufficient basis for modification. We are not persuaded. To the extent that
mother suggests her interference with father’s parenting time cannot indicate changed
circumstances because she engaged in the same obstructive behavior before the initial
custody order, we reje ct this “disingenuous” position. See Sharp v. Bilbro , 614 N.W.2d
260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000). And the record reflects
more than a mere continuation of that behavior. The district court recounted various
instances of mother interfering with father’s custodial rights and his relationship with the
child, including what the court characterized as her “unfounded and egregious” accusations
of sexual impropriety when father indicated willingne ss to apply the child’s vaginal
medication rather than forfeit his parenting time as mother demanded; her refusal to make
the child’s medical or childcare records available to father, despite his numerous requests;
and her unilateral changes to childcare and preschool arrangements, over father’s
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objections. Because the record reflects repeated parenting-time interference despite
warnings in the initial custody order against such conduct, as well as additional new
conflicts between the parties, the district court did not clearly err in fi nding a change of
circumstances.
Best Interests
When evaluating a request to modify custody, a district court must consider whether
modification is “necessary to serve the best interests of the child.” Minn. Stat. § 518.18(d).
Factors relevant to the child’s best interests may include the parties’ ability to cooperate in
raising the child and whether domestic abuse has occurred between the parties. See Minn.
Stat. § 518.17, subd. 1(a) (2016).
Mother argues that the district court’s best-interests findings are insufficient because
they do not address all of the factors listed in Minn. Stat. § 518.17, subd. 1(a). We disagree.
While the statute identifies factors that may be “relevant” to issues of custody, it does not
govern custody modification—Minn. Stat. § 518.18 does. See Hansen v. Todnem , ___
N.W.2d ___, ___, 2018 WL 1321370, at *2 (Minn. Mar. 14, 2018) (stating that Minn. Stat.
§ 518.17 applies to “initial custody determinations”) . And the district court’s findings
indicate that it accurately assessed the child’s best interests under Minn. Stat. § 518.18.
The district court explained that awarding father sole legal custody serves the child’s best
interests because “overwhelming evidence” indicates that “the parties do not have the
ability to share joint legal custody.” This explanation not only points to the detailed and
amply supported factual findings regarding mother’s interference with joint legal custody
but also implicitly acknowledges that the initial custody order afforded the parties an
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extraordinary opportunity to attempt joint legal custody despite their history of conflict and
abuse.
In the initial order, the district court thoroughly analyzed the child’s best interests
and found that mother’s domestic abuse against father “support[s] an award of sole legal
custody to Father .”3 The district court made no finding that mother rebutted the
presumption against joint custody, instead noting “grave concerns about interactions
between the parties” that make all possible custody arrangements “fraught with potential
perils.” The district court ultimately awarded joint legal custody only because the
arrangement “possesses the greatest potential for a happy childhood for [the child],” with
both parents “able to exer cise an active and equal role in her life.” But the record
demonstrates that this potential was not realized. Instead, mother actively undermined this
goal, causing joint custody to fail.
Mother contends that if either parent is given sole legal custody, it should be she
because she is more experienced in caring for the child and supports father’s role in the
child’s life. Mother ignores evidence that father has sought a more active role in meeting
the child’s needs, and evidence that mother has prevented him from doing so. As recounted
above, mother has impeded —not supported —father’s rela tionship with the child . By
contrast, father has never interfered with mother’s parenting time. While he acknowledges
that he does not encourage the child’s telephone contact with mother during his parenting

3 The district court referenced the domestic-abuse presumption in Minn. Stat. § 518.17,
subd. 2 (2014). That provision has since been repealed , 2015 Minn. Laws ch. 30, art. 1,
§ 13, at 283, but the presumption continues in Minn. Stat. § 518.17, subd. 1(b)(9).
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time, the record contains neither evidence nor argument that he has sought to undermine
mother’s relationship with the child. On this record, the district court did not clearly err in
finding that the child’s best interests are served by awarding father sole legal custody.
Endangerment
The concept of endangerment is “unusually imprecise .” Goldman, 748 N.W.2d at
285 (quotation omitted). But it encompasses danger to emotional health or developmen t,
Minn. Stat. § 518.18(d)(iv), including risk of harm flowing from emotional abuse or
isolation from relatives. Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997). This
court generally requires a showing that there has been “an actual adverse effect on the
child.” In re Weber , 653 N.W.2d 804, 811 (Minn. App. 2002) . But Minn. Stat.
§ 518.18(d)(iv) does not require a parent to wait until the child has actually been harmed
to pursue custody modification; he need only show that the child’s environment creates a
cognizable risk of harm. See American Heritage Dictionary 588 (5th ed. 2011) (defining
endanger as “[t ]o expose to harm or danger”); see also Sharp, 614 N.W.2d at 263 -64
(upholding finding of endangerment on testimony that mother’ s conduct “ will cause
emotional psychological damage to her child”).
Mother argues that the record does not support the district court’s endangerment
finding because there is no evidence that the child, who was approximately three years old
at the time of the modificatio n order, was aware of , let alone negatively affected by, the
conflicts between her parents. We disagree. Father’s testimony and exhibits indicate that
the child has consistently been exposed to hostilit y during parenting -time exchanges ,
including being p hysically passed between the parties during at least one protracted
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argument. The child has routinely witnessed police interventions at parenting -time
exchanges. Mother conceded that the child is “very aware” of the parties’ conflict and
suggested to father that the child will require therapy as a result. Indeed, while mother
opposes the district court’s endangerment finding, she does not appear to dispute that the
parties’ conflict (which the district court attributed almost entirely to mother’s “incredibly
unreasonable” behavior toward father) creates a toxic environment for the child. Given the
pervasiveness of the hostility between the parties, the child’s repeated exposure to their
conflict, and mother’s persistent efforts to undermine the child’s r elationship with father,
we see no clear error by t he district court in finding that the child is endangered by this
environment.
Benefits and Detriments
“Minnesota law presumes that stability in custody is in a child’s best interests. ”
Weber, 653 N.W.2d at 811. But that presumption must give way when the status quo is
more harmful than beneficial. Tarlan v. Sorensen , 702 N.W.2d 915, 924 (Minn. App.
2005). For this reason, a finding that a child’s current environment endangers her
implicitly supports a determination that the benefits of changing that environment outweigh
transitional detriments. See Geibe, 571 N.W.2d at 778 (observing that the balance of harms
may be “implicit in the other factors”).
Mother asserts that awarding father sole legal custody is detrimental because it will
“depriv[e] [her] of the ability to make major decisions in [the child’s] life.” This argument
underscores one of the critical reasons for the custodial modification —mother used the
initial award of joint legal custody to unilaterally dictate those decisions, depriving father
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of the very right she now complains of losing. By awarding father sole legal custody, the
district court entitled father to make the decisions regarding the chi ld’s medical care,
childcare, and education. But mother is not excluded from knowledge of those decisions
going forward; the modification order requires both parties to communicate with each other
about such matters. Further, we agree with the district c ourt that the practical impact of
the legal-custody modification on the child is likely minimal. More significant to the child,
and to each parent’s relationship with the child, is the joint physical custody arrangement
to which both parties agreed. That arrangement, combined with equal parenting time,
means the child will continue to spend substantial time with both parents, to her undisputed
benefit. The district court did not clearly err by finding that this beneficial arrangement
comes at little cost to the child’s preexisting routine.
In sum , extensive evidence supports the district court’s determination that the
parties’ persistent conflict and mother’s unreasonable conduct created a ho stile
environment that endangered the child and made joint legal custody untenable. On this
record, and in view of the unique history of this case, we conclude that the district court
did not abuse its discretion by modifying legal custody.
II. The district court did not abuse its discretion by modifying parenting time.
A district court generally may modify parenting time if doing so “would serve the
best interests of the child.” Minn. Stat. § 518.175, subd. 5(b) (2016). We will not reverse
a parenting -time decision unless the district court abused its broad discretion “by
misapplying the law or by relying on findings of fact that are not supported by the record.”
Suleski v. Rupe, 855 N.W.2d 330, 334 (Minn. App. 2014).
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Mother argues that the district court abused its discretion by modifying parenting
time to an alternating-week schedule because neither party requested it. Mother identifies
no authority imposing such a limitation on the district court’s discretion , and we discern
none from the legislature’s direction that the “best interests of the child,” rather than
parental preferences, dictate whether and how a district court may modify parenting time.
See id. Moreover, the record indicates that the alternating-week schedule was thoroughly
litigated. Father expressly requested an alternating -week schedule at the evidentiary
hearing, testifying, “I’m proposing that we kind of move more or less to my week, then
your week, my week, your week type of rotation.” And mother had an opportunity to voice
her opposition and concerns.
Mother also challenges the adequacy of the district court’s parenting-time findings.
We agree that the court’s order does not contain an express finding that the alternating-
week schedule is in the child’s best interests. But the record demonstrates that the
parenting-time decision was plainly driven by the child’s best interests. At the hearing, the
district court stated that its goal was to “try to make certain that . . . the schedule is best for
[the child] . . . and try to make these exchanges as painless as possible for her.” It did so
by slightly increasing father’s parenting time —from six overnights every two weeks to
seven—and reducing the frequency of exchanges . The district court’s findings reflect its
determination that the “insignificant” change is unlikely to detrimentally affect the child ,
and that making parenting-time exchanges as infrequent and controlled as possible is in the
child’s best interests. Accordingly, remand for an explicit finding is unwarranted. Grein
v. Grein, 364 N.W.2d 383, 387 (Minn. 1985).
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Finally, the record amply supports the alternating -week schedule. It is undisputed
that parenting-time communication and exchanges are points of high conflict; reducing the
number of exchanges should help reduce conflict. The schedule also affords consistency,
which both parties requested for the child. And the amou nt of parenting time affected by
the change is minimal . The district court did not abuse its discretion by modifying
parenting time to an alternating-week schedule.
III. The district court did not abuse its discretion by designating the child’s
primary residence.

The term “primary residence” refers to “the principal dwelling or place where the
child lives.” Suleski, 855 N.W.2d at 335. A child’s primary residence is based on more
than the apportionment of parenting time . Christensen v. Healey, 899 N.W.2d 573, 57 7-
78 (Minn. App. 2017) (citing Suleski, 855 N.W.2d at 335), review granted (Minn. Sept. 19,
2017). But substantial changes to parent ing time may effectuate a change of primary
residence. See Minn. Stat. § 518.175, subd. 5(a) (establishing best-interests-of-the-child
standard for parenting-time modification “if the modification would not change the child’s
primary residence”). When that happens, the change in primary residence is treated like a
custody modification, and the moving party must satisfy the endangerment standard. Minn.
Stat. § 518.18(d); Christensen, 899 N.W.2d at 579.
Mother argues that the district court abused i ts discretion by designating father’s
residence as the child’s primary residence because neither party requested such a
designation. We are not persuaded. While it is true that neither party expressly raised this
issue, the related issues of custody and parenting time were squarely before the court,
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affording the parties an opportunity to be heard on the statutory factors governing a change
of primary residence. Cf. Splinter v. Landsteiner, 414 N.W.2d 213, 214 (Minn. App. 1987)
(reversing custody modification when there was “no motion for modification, no affidavits
addressed to that issue, no hearing, no transcript and no findings”). Because father sought
to modify both the custody and parenting-time provisions of an order that effectively made
mother’s residence primary , his motion reasonably raised a question whether mother’s
residence was still primary. The district court elected to answer that question , and the
record supports its decision.
The parties acknowledge their high degree of conflict, and both requested a detailed
and specific order to reduce the potential for conflict . The district court responded by
clarifying that despite joint physical custody and equal parenting time, father is the
“primary” parent in terms of legal custody and residence. Such a clarification is generally
permissible. See Ayers v. Ayers , 508 N.W.2d 515, 520 (Minn. 1993) (holding that joint
physical custody arrangement does not preclude one parent’s residence being designated
as primary). And the district court plainly deemed it a necessary condition to accepting the
parties’ agreement to joint physical custody : “Given the history of extensive conflict
between these parties, this Court is concerned about their ability to share physical custody.
At this time, however, this Court will defer to their testimony that this arrangement is in
the child’s best interests. Father’s residence will be the minor child’s primary residence.”
We discern no abuse of discretion by the district court in designating father’s residence as
primary.
Affirmed.