In Re the Custody of: N.S.V., L.J.V., E.T.V., Terri Ann Bischoff, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0990

In Re the Custody of: N.S.V., L.J.V., E.T.V.,
Terri Ann Bischoff,
Appellant,

vs.

Linda J. Vetter,
Respondent.

Filed September 16, 2019
Affirmed
Halbrooks, Judge

Hennepin County District Court
File No. 27-FA-16-478

John DeWalt, Melissa Chawla, DeWalt, Chawla + Saksena, LLC, Minneapolis, Minnesota
(for appellant)

Gary A. Debele, Messerli & Kramer P.A., Minneapolis, Minnesota (for respondent)

Michael D. Dittberner, Linder, Dittbener, & Winter, Ltd., Edina, Minnesota; and

Mary Pat Byrn, Viitala Law Office, Minneapolis, Minnesota; and

Diane B. Galatowitsch, Stinson, Leonard, Street, LLP, Minneapolis, Minnesota; and

Elizabeth E. Due, Mack & Santana Law Offices, P.C., Minneapolis, Minnesota (for amicus
curiae Minnesota Lavender Bar Association)

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Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and
Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges the denial of her petition to be adjudicated the parent of three
minor children under the Minnesota Parentage Act, Minn. Stat. §§ 257.51-.74 (2018),
arguing that the district court erred in determining that no presumption of parentage applies
to her, that the parentage act is unconstitutional, and that the district court erred in denying
her request to be granted third-party custody of the children. We affirm.
FACTS
Appellant Terri Ann Bischoff and respondent Linda J. Vetter were in a romantic
relationship from approximately 2002 until 2010. Vetter became pregnant in October
2004, and gave birth to N.S.V. in June 2005. The parties lived in Madison, Wisconsin at
the time and owned a bookstore where Bischoff worked. After Vetter returned to work
following maternity leave, Bischoff brought N.S.V. with her to the bookstore during the
day and care d for him there. This continued for approximately one year, at which time
N.S.V. began attending daycare 2-3 times per week.
Shortly after N.S.V. was born, the parties decided that they wanted him to have a
sibling. Vetter started the artificial -insemination process again and ultimately became
pregnant with twin boys. The twins, L.J.V. and E.T.V., were born in September 2007. The

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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parties sent out a birth announcement that listed Vetter and Bischoff as the “proud parents.”
All three children were baptized into the Moravian Church, which Bisc hoff grew up
attending, and have godparents from both sides of the par ties’ families. E ach child also
has family names from both sides incorporated into his name.
In September 2008, the parties sold the bookstore and moved to Champlin,
Minnesota. In 2010, the parties ended their relationship. Following the parties’ separation,
the children lived with Vetter. By agreement of the parties, Bischoff paid Vetter $500 a
month for what the parties characteriz ed as child support. The parties also established an
informal parenting-time schedule in which Bischoff had the children for one overnight per
week and every other weekend. There was no agreement regarding holidays or vacation.
The child-support payments and parenting -time schedule were in place from the
time the parties ended their relationship in 2010 until the spring of 2015. During that time,
Bischoff continued to be listed as a parent contact on the children’s medical and school
records. In the spring of 2015, Vetter removed Bischoff’s name from the children’s records
after discovering that Bischoff had begun a relationship with A.S. Vetter believed that
A.S. had a concerning history of violent behavior and requested that Bischoff kee p her
away from the children.
In December 2015 , Bischoff commenced this action to establish custody a nd
parenting time. Bischoff requested that the district court adjudicate her as the “intended
and legal parent” of the children, order that the parties share joint legal and physical custody
of the children, and establish a parenting-time schedule. Vetter filed an answer denying
many of the factual allegations in Bischoff’s petition and moved to dismiss the petition for

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failure to state a claim upon which relief can be granted. The district court denied the
motion and ordered a custody and parenting-time evaluation.
Bischoff filed an amended petition to establish parentage, custody, and pa renting
time. The petition alleged that she qualified as a parent and had standing to pursue custody
and parenting time under the parentage act because she had received the children into her
home and held them out as her own. She asserted that if the district court determined that
she did not have standing to bring a parentage action under the parentage act, then the act
was unconstitutional. In the alternative, she argued that she was an interes ted third party
entitled to custody and parenting time under Minn. Stat. § 257C.03, subd. 7 (2018), or that
she was entitled to third-party visitation under Minn. Stat. § 257C.08, subd. 4 (2018).
Following a court trial, the parties submitted a six-page stipulated statement of facts.
The district court issued an o rder denying Bischoff’s request to be adjudicated the parent
of the minor children, d etermining that the parentage act is constitutional, denying her
request to be granted third -party custody of the children, and awarding her third-party
visitation. This appeal follows.
D E C I S I O N
I.
Bischoff argues that the district court erred in d etermining that no presumption of
parentage applies under the parentage act. The interpretation and application of statutes
present questions of law and are reviewed de novo. Lewis-Miller v. Ross, 710 N.W.2d 565,
568 (Minn. 2006). The goal of statutory interpretation is to “ascertain and effectuate the
intention of the legislature.” Minn. Stat. § 645.16 (2018). “When the language of a statute

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is plain and unambiguous, it is assumed to manifest legislative intent and must be given
effect.” Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn. 2001). Words and phrases
are construed according to their plain and ordinary meaning. Am. Tower, L.P. v. City of
Grant, 636 N.W.2d 309, 312 (Minn. 2001).
The parentage act defines the parent-child relationship and delineates how parentage
may be established. The act defines the “parent and child relationship” as “the legal
relationship existing between a child and the child’s biological or adoptive parents” and
provides that the relationship “includes the mother and child relationship and the father and
child relationship.” Minn. Stat. § 257.52. The act provides that “the biological mother
may be established by proof of her having given birth to the child” or under anot her
provision of the parentage act. Minn. Stat. § 257.54(a). A woman alleging herself to be
the mother of a child may bring an action to declare the mother and child relationship under
Minn. Stat. § 257.71, which provides that “[i]nsofar as practicable, the provisions of [the
parentage act] applicable to the father and child relationship apply.” Minn. Stat. § 257.55
establishes when a presumption of paternity may be appli ed. Relevant to this action, the
statute provides that “[a] man is presumed to be the biological father of a child if . . . while
the child is under the age of majority, he receives the child into his home and openly holds
out the child as his biological child.” Minn. Stat. § 257.55, subd. 1(d). The presumption
is rebuttable by clear and convincing evidence. Id., subd. 2.
Bischoff argues that the district court erred in determining that the holding -out
presumption does not apply to her and create a presumption of parentage. She argues that
because the provisions of the parentage act that apply to the father and child relationship

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apply to the mother and child relationship, the holding-out provision applies to her because
she welcomed the children into her home and held them out as her own. The district court
acknowledged, and the re cord supports, that the children consider Bischoff to be one of
their parents and that she con siders them to be her sons. But it went on to determine that
it is undisputed that Bischoff is not the biological parent of the children and never adopted
the children and therefore does not have a parent-child relationship within the meaning of
the statute because it defines the parent-child relationship as “the legal relationship existing
between a child and the child’s biological or adoptive parents.” Minn. Stat. § 257.52.
Bischoff argues that the district court erred in determining that the holding -out
presumption does not apply to her because she is not a biological parent of the children.
She argues that the purpose of Minn. Stat. § 257.55, subd. 1(d) , is to create a path to
establish legal parentage independent of a biological or adoptive relationship. We disagree.
This court has described the goal of the presumptions of paternity as to “create a functional
set of rules that point to a likely father.” In re Welfare of C.M.G., 516 N.W.2d 555, 558
(Minn. App. 1994). We further noted that the act was adopted in an effort “to find the
biological father and then to adjudicate that person the legal father.” Id. at 560 n.8. This
court urged the legislature to “remove these traces of the original lodestar of the parentage
act—that is, biological.” Id. But the legislature has not amended the parentage act to
redefine the parent -child relationship to include a relationship other than a biological or
adoptive one.
Additionally, Minn. Stat. § 257.55, subd. 1(d), applies only when a man receives a
minor child into his home and “holds out the child as his biological child.” (Emphasis

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added.) This reinforces this court’s observation that the parentage act and presumptions of
paternity were adopted in an effort “to find the biological father.” Id. Finally, we note that
the presumption is rebuttable by clear and convincing evidence. Minn. Stat. § 257.55,
subd. 2.
Bischoff has never asserted that she is a biological parent of the children and indeed
stipulated that she is not. The provision of the parentage act that applies to the father and
child relationship appl ies to the mother and child relationship only “[i]nsofar as
practicable.” Here it is not practicable to apply a rebuttable presumption that Bischoff is a
biological parent of the children when she has never claimed to be and has stipulated that
she is not. On this record, we conclude that the district court did not err in determining that
the holding-out presumption does not apply to Bischoff and that she cannot establish legal
parentage under the parentage act.
II.
Bischoff argues that the district court erred in determining that the parentage act is
constitutional. The constitutionality of a statute is a question of law that we review
de novo. Rew v. Bergstrom, 845 N.W.2d 764, 776 (Minn. 2014). The supreme court has
held that it exercises great caution in declaring statutes unconstitutional and will do so only
when absolutely necessary. SooHoo v. Johnson, 731 N.W.2d 815, 821 (Minn. 2007). The
supreme court will not declare an act unconstitutional unless the challenging party
demonstrates that it is unconstitutional beyond a reasonable doubt. Id. Bischoff argues
that the statute violates the Equal Protection Clause of the United States and Minnesota
Constitutions because it discriminates against her based on her gender and marital status.

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We apply intermediate scrutiny to gender -based claims and must dete rmine if the
statute serves an important government interest and is substantially related to serving that
interest. State ex rel. Forslund v. Bronson , 305 N.W.2d 748, 750 (Minn. 1981). We first
note that establishing the legal relationship between a parent and child serves an important
government interest. As noted in the parentage act, the parent and child relationship is a
legal relationship that imposes “rights, privileges, duties, and obligations.” Minn. Stat.
§ 257.52. Establishing a process by wh ich an individual can be declared the legal parent
of a child ensures that those “rights, privileges, duties, and obligations” can be enforced,
which protects the welfare of the child. See Soohoo, 731 N.W.2d at 822 (stating that the
government has a compe lling interest in protecting the general welfare of children); see
also Machacek v. Voss , 361 N.W.2d 861, 864 (Minn. 1985) (stating that the government
has an interest in avoiding large public expenditures by ensuring that children are being
supported by t heir natural parents). Accordingly, the parentage act serves an important
government interest.
We must next consider whether the parentage act is substantially related to serving
the government’s interest. We conclude that it is. The parentage act defines the parent and
child relationship and creates a comprehensive set of procedures by which legal parentage
may be established. The parentage act does include separate procedures by which the
biological mother and biological father may be established . But this is because , in most
cases, the biological mother is easily identified because she gave birth to the child. Minn.
Stat. § 257.54(a). The biological father may not be as easily identifie d, which is why the
presumptions were established to “create a functional set of rule s that point to a likely

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father” until a court can adjudicate him as such. C.M.G., 516 N.W.2d at 558. And the
provisions that apply to the father and child relationship apply to the mother and child
relationship “[i]nsofar as practicable.” Minn. Stat. § 257.71. Accordingly, the procedure
established by the parentage act is substantially related to serving the government’s interest
because it creates a system by which those having a legal relationship with the child may
be identified and declared the parent of the child, which allows for the enforcement of the
legal duties and responsibilities imposed by the parent and child relationship.
Bischoff also argues that the parentage act is unconstitutional because it
discriminates against her base d on marital status. We apply a rational -basis test to
classifications based on marital status. State v. Benniefield, 678 N.W.2d 42, 46 (Minn.
2004). The test requires that the classifications “must not be manifestly arbitrary or fanciful
but must be genuine and substantial” and that there is a clear connection between the
classifications and the purpose of the law. Id.
As discussed above, the st ate has an interest in defining the parent and child
relationship and in imposing the obligations that go along with it. The goal of the
presumptions of paternity in the parentage act is to identify a likely father and establish a
process by which that individual can be adjudicated the parent. C.M.G., 516 N.W.2d at
560 n.8. Accordingly, the goal of the presumptions of paternity is to assist the state in
establishing the legal parent and child relationship. The parentage act includes certain
presumptions of paternity that apply to married couples, including that a man is presumed
to be the father if he is married to the biological mother of the child and the child is born
within a certain time frame of the marriage. Minn. Stat. § 257.55, subd. 1(a) -(c). These

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presumptions are not arbitrary or fanciful, but rather recognize that when a married woman
gives birth to a child, it is reasonable to presume that her husband is the father of the child.
And the parentage act includes additional presumptions that apply to unmarried persons.
Minn. Stat. § 257.55, subd. 1(d)-(h). Accordingly, the parentage act does not discriminate
based on marital status.
III.
Bischoff argues that she is entitle d to third -party custody of the children because
she qualifies as an interested third party under Minn. Stat. § 257C.03, subd 7. We review
a district court’s third -party custody determination for an abuse of discretion. Lewis-
Miller, 710 N.W.2d at 568. A district court abuses its discretion “by making findings
unsupported by the evidence or by improperly applying the law.” In re Custody of A.L.R.,
830 N.W.2d 163, 166 (Minn. App. 2013) (quotation omitted). Minn. Stat. § 257C.03,
subd. 7, establishes three ways in which an indi vidual can demonstrate that they are an
interested third party. The party must show that the custodial parent has “abandoned,
neglected, or otherwise disregarded the child’s well -being,” that placement with the
individual seeking custody “takes priority o ver preserving the day -to-day parent -child
relationship” because of physical or emotional danger to the child, or “other extraordinary
circumstances.” Minn. Stat. § 257C.03, subd. 7(a)(1). In addition, the party must “prove
by a preponderance of the evid ence that it is in the best interests of the child to be in the
custody of the interested third party.” Minn. Stat. § 257C.03, subd. 7(a)(2).
Bischoff argues that she is entitled to third -party custody b ecause she has
established “other extraordinary circumstances.” She argues that “extraordinary

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circumstances” exist because she has a substantial and deeply bonded relationship with the
children. Th e district court acknowledged that Bischoff and the children have a strong
emotional connection and that the children view Bischoff as one of their parents, but
determined that such circumstances did not meet the definition of “extraordinary
circumstances” established by this court. This court has previously interpreted the phrase
“extraordinary circumstances” in the context of Minn. Stat. § 257C.03, subd. 7(a)(1)(iii) ,
and determined that it “refers to circumstances of a grave and weighty nature, which
encompasses situations when a child has been abused or neglected, as well circumstances
when the child has special needs.” A.L.R., 830 N.W.2d at 170.
The district court determined, based on the requirement that the “other extraordinary
circumstances” must be of “a grave and weighty nature,” that Bischoff could not establish
that she is entitled to third -party custody of the children. Bischoff relies on Soohoo to
support her argument that there can be finding of “extraordinary circumstances” without a
finding of abuse or neglect . 731 N.W.2d at 815 . But Soohoo addressed th ird-party
visitation, not third -party custody. Id. at 818. In Soohoo, the parties were involved in a
same-sex relationship for 22 years. Id. During the relationship, Johnson adopted two
children. Id. Soohoo did not adopt either child, but the parties co -parented the children,
considered themselves to be a family unit and held themselves out to others as such, and
the children considered Soohoo to be one of their parents. Id. at 818 -19. After the
relationship ended, Soohoo petitioned for custody of the children as an interested thi rd
party. Id. at 819. The district court denied the petition for custody, but granted Soohoo
third-party visitation under Minn. Stat. § 257C.08, subd. 4. Id. Soohoo did not appeal the

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denial of her petition for custody, and thus the only issue on appeal was the award of third-
party visitation. Id.
Here, the district court similarly denied Bischoff’s petition for third -party custody
but granted her petition for third -party visitation. And Bischoff’s argument that she is
entitled to third-party custody because she has established strong emotional ties with the
children is more consistent with the criteria to establish third -party visitation under Minn.
Stat. § 257C.08, subd. 4. That statute allows for a third party to be granted visitation when
a minor child has resided with the party for at least two years, and the individual and the
child have “established emotional ties creating a parent and child relationship.” Minn. Stat.
§ 257C.08, subd. 4. To be awarded third -party custody, a party must s how more than a
strong emotional connection that creates a parent -child relationship; the party must show
that the natural parent has abandoned or neglected the child, that the child is in physical or
emotional danger, or “other extraordinary circumstances .” Minn. Stat. § 257C.03, subd.
7(a)(1).
Our caselaw supports the district court’s determination that Bischoff failed to
establish “other extraordinary circumstances.” As discussed above, this court determined
in A.L.R. that “other extraordinary circum stances” are “those of a grave and weighty
nature,” such as “situations when a child has been abused or neglected, as well as
circumstances when the child has special needs.” 830 N.W.2d at 170. And in Lewis-
Miller, the supreme court referred to the three factors listed in Minn. Stat. § 257C.03, subd.
7(a)(1), as the “child-endangerment factors” and noted that the district court is required to
dismiss a petition for third -party custody “if the petitioner fails to establish an

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endangerment factor.” 710 N.W.2d at 568. Accordingly, the strong emotional ties between
Bischoff and the children are insufficient to establish that Bischoff is an interested third
party. There must be some showing of endangerment. On this record, the district court
did not abuse its discretion in denying Bischoff’s petition for third-party custody.
Affirmed.