In re the Matter of: Awal Ismael Hussein, 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This opinion will be unpublished and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
A19-0164

In re the Matter of: Awal Ismael Hussein,
Appellant,

vs.

Lensa Mohamed Musa,
Respondent.

Filed November 12, 2019
Affirmed in part and remanded
Reilly, Judge

Hennepin County District Court
File No. 27-FA-16-8245

Robert A. Manson, Robert A. Manson, P.A., White Bear Lake, Minnesota (for appellant)

Shellie Lundgren, Minneapolis, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Reilly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this parenting dispute, appellant -father argues that the record does not support
awarding respondent-mother sole legal and physical custody of the minor child, and that
the district court erred by declining to award parenting time to father. We affirm the district
court’s custody determination. However, we remand the district court’s parenting -time

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determination with instructions to make factual findings regarding father ’s request for
parenting time.
FACTS
Appellant-father Awal Ismael Hussein and respondent -mother Lensa Mohamed
Musa are the parents of a minor child born in 2010 in Seattle, Washington. The couple
describe their relationship as a cultural marriage, although no legal marriage occurred. In
2008, mother gave birth to the couple’s older child, who is not part of this dispute. Mother
gave birth to their second child in 2010. In 2012, mother and the younger child moved to
Minnesota, while father and the older child remained in Washington.
In December 2016, father filed a summons and petition to establish custody and
parenting time with regard to the younger child. In December 2017, the district court issued
an order for custody and a parenting -time evaluation. In May 2018, Hennepin County
Family Court Services (the county) submitted a custody and parenting -time evaluation
report to the district court. The report noted that father’s and mother’s accounts of their
relationship history differed greatly. Mother described the relationship as verbally and
physically abus ive, while father described the rel ationship as “good ” and denied any
allegations of abuse. The report indicated that “there is little outside data available to lend
credence” to either account . The report noted that “[t]he parties have lived apart for s ix
years with each [parent] hav[ing] complete responsibility for the day-to-day care and legal
decision-making of the child in their care, and with little to no contact with the other child.”
The county noted that “[n]o face-to-face parenting time occurred during the course of [the]

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evaluation,” and that it was not possible to directly assess father’s home environment in
Washington.
The district court conducted a trial in August 2018, and issued an order in October
2018, awarding mother sole legal and phys ical custody of the child. The district court
granted father parenting time via telephone and video -chat once per week, and permitted
mother to record those conversations. Father filed a motion for amended findings and a
new trial, which the district court denied. This appeal follows.
D E C I S I O N
I. We Affirm the District Court’s Custody Determination.
Father challenges the district court order awarding mother sole legal and physical
custody of the child. Our review of the district court’s custody deci sion is “limited to
determining whether the district court abused its discretion by making findings
unsupported by the evidence or by improperly applying the law.” Zander v. Zander, 720
N.W.2d 360, 365-66 (Minn. App. 2006), review denied (Minn. Nov. 14, 2 006). We will
sustain a district court’s findings of fact unless they are clearly erroneous. Pikula v. Pikula,
374 N.W.2d 705, 710 (Minn. 1985) . We defer to a district court’ s credibility
determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
The best interests of the child are central to determining custody. Minn. Stat.
§ 518.17, subd. 1(a) (2018). The statute articulates twelve factors to consider in evaluating
the best interests of the child, including:
(1) a child’s physical, emot ional, cultural, spiritual, and other
needs, and the effect of the proposed arrangements on the
child’s needs and development;

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(2) any special medical, mental health, or educational needs
that the child may have that may require special parenting
arrangements or access to recommended services;
(3) the reasonable preference of the child, if the court deems
the child to be of sufficient ability, age, and maturity to express
an independent, reliable preference;
(4) whether domestic abuse . . . has occurred in the parents’ or
either parent’s household or relationship; the nature and
context of the domestic abuse; and the implications of the
domestic abuse for parenting and for the child’s safety, well -
being, and developmental needs;
(5) any physical, mental, or chemical health issue of a parent
that affects the child’s safety or developmental needs;
(6) the history and nature of each parent’s participation in
providing care for the child;
(7) the willingness and ability of each parent to provide
ongoing care for the child; to meet the child’s ongoing
developmental, emotional, spiritual, and cultural needs; and to
maintain consistency and follow through with parenting time;
(8) the effect on the child’s well -being and development of
changes to home, school, and community;
(9) the effect of the proposed arrangements on the ongoing
relationships between the child and each parent, siblings, and
other significant persons in the child’s life;
(10) the benefit to the child in maximizing parenting time with
both parents and the detriment to the child in limiting parenting
time with either parent;
(11) except in cases in which domestic abuse . . . has occurred,
the disposition of each parent to support the child’s relationship
with the other parent and to encourage and permit frequent and
continuing contact between the child and the other parent; and
(12) the willingness and ability of parents to cooperate in the
rearing of their child; to maximize sharing information and
minimize exposure of the child to parental confli ct; and to

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utilize methods for resolving disputes regarding any major
decision concerning the life of the child.
Id., subd. 1(a)(1)-(12).
The district court must make “detailed” factual findings on each factor and explain
how each factor led to the district court’s conclusions, and to the ultimate determination of
custody and parenting time. Id., subd. 1(b)(1) (2018). The statute prohibits the district
court from using “one factor to the exclusion of all others.” Id. The statute also requires
the district court to use a rebuttable presumption that , upon the request of either or both
parties, joint legal custody is in the best interests of the child. Id., subd. 1(b)(9) (2018).
However, “[t]here is no presumption for or against joint physical custody,” absent evidence
of domestic abuse. Id., subds. 1(b)(7), (9) (2018). The district court “shall consider” both
parents as having the capacity to develop and sustain nurturing relationships with the child.
Id., subd. 1(b)(3) (2018). The district court must consider “the benefit to the child in
maximizing parenting time with both parents and the detriment to the child in limiting
parenting time with either parent.” Id., subd. 1(a)(10).
Here, the district court carefully considered each statutory factor and made detailed
findings addressing each factor.
The district court found that the first factor weighed against father’s request. The
district court found that father exhibited “a general disregard for the physical and emotional
needs” of the child, and fai led to appreciate that his proposal to move the child from
Minnesota to Washington would harm her physical and emotional needs. The district court
credited the county’s conclusion that the child was “thriving in her current environment

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with Mother,” and f ound that the child was succeeding in school and in her religious
studies.
The district court found that the child did not have special needs requiring special
arrangements, and considered this factor to be neutral.
With respect to the third factor, the di strict court found that the child was not of
sufficient ability, age, or maturity to express an independent and reliable preference.
Under the fourth factor, the district court noted that mother alleged that father
abused her, while father denied her allegations. Neither party provided evidence to support
or contradict their accounts. Given the contradictory testimony and the absence of
corroborating evidence, the district court considered this factor to be neutral.
The district court found that neither party presented concerns regarding any
physical, mental, or chemical health issues of the other parent that could affect the child’s
safety or developmental needs.
Under the sixth factor, the district court found that father “has not been involved in
providing care for [the child] since she was approximately 2 years old.” The district court
noted that there was “no dispute that Mother has been the primary caregiver for the majority
of [the child]’s life.” Accordingly, the district court determined that “Father’s almost
complete absence from the child’s life and Mother’s sole role as caregiver makes this factor
weigh heavily in favor of granting Mother sole legal and physical custody.”
With respect to the seventh factor, the district court found that father expressed a
desire for the child to be successful in school and in her faith-based studies. But the district
court noted that father admitted to “not possessing the personal knowledge of [the child’s]

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day-to-day activities as a result of not being involved in her life since she was 2.” By
contrast, the district court found that mother “provides consistent religious activities” for
the child and raises her in a supportive religious environment. The district court determined
that this factor weighed against father’s custody request.
The district court also found that the eighth factor, “the effect on the child’s well -
being and development of changes to home, school, and community,” weighed “strongly
in favor of denying Father’s request.” Minn. Stat. § 518.17, subd. 1(a)(8). Father’s
proposal to move the child from Minnesota to Washington would “sever” her relationships
with her mother, stepfather, and half-brother. The district court noted that the child has not
lived in Washington since she was two years old, and a move would “greatly impact her
well-being.”
For the ninth factor, the district court considered “the effect of the propos ed
arrangements on the ongoing relationships between the child and each parent, siblings, and
other significant persons in the child’s life.” Id., subd. 1(a)(9). The district court found
that moving the child to Washington would allow her to build a relationship with her older
sibling, but would sever the child’s relationship with her mother. However, keeping the
child in Minnesota would preserve the child’s relationship with her mother, stepfather, and
half-brother. The district court found that the pa rents’ proposals “have the potential to
sever any relationship with at least one important family member,” and determined that the
factor was neutral.
The district court found that the tenth, eleventh, and twelfth factors were neutral
because “[n]either parent supports a relationship between [the child] and the other parent.”

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The district court found that while parenting time with either parent would be beneficial
for the child, neither parent’s custody proposal would allow for such contact. Moreover,
the district court found that “[t]he parents are not willing nor are they able to cooperate in
the rearing of [the child]” and were “unlikely” to utilize constructive methods for resolving
any disputes involving the child.
Based on its analysis of the statutory factors, the district court found that it was in
the child’s best interest s to award sole physical and legal custody to mother. The district
court concluded that:
While the Court is required to consider all fa ctors . . . , only a
few factors apply and all of them weigh in favor of denying
Father’s requests. The strongest and clearest factors in favor
of denying [Father’s request for custody] are those relating to
[the child] being able to maintain the consiste ncy and life she
has grown up in prior to Father’s petition. In effect, Father’s
requests would move [the child] from everything she has
known in Minnesota only to transplant her across the country
and into a living arrangement with family members she has had
little interaction with for 6 years. Father fails to recognize the
impact this would have on [the child] and appears to be
motivated only by his religious concerns.
The district court properly applied the law and considered the statutory findings
enumerated in Minn. Stat. § 518.17, subd. 1(a) in reaching its custody determination. The
district court made detailed findings supporting each statutory factor, and the district
court’s findings are supported by the record evidence. While the record may ha ve
supported alternat e findings —as father suggests —the district court’s findings and its
assessment that an award of sole custody to the mother is in the child’s best interests is not
clearly erroneous. See Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000)

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(recognizing that the law “leaves scant if any room for an appellate court to question the
[district] court’s balancing of best-interests considerations”). We therefore conclude that
the district court did not abuse its discretion by granting mother sole legal and physical
custody of the child.
II. We Remand the District Court’s Parenting-Time Determination.
Father challenges the district court’s parenting -time determination. “[A] district
court has broad discretion to decide parenting -time ques tions” and this court “will not
reverse a parenting -time decision unless the district court abused its 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).
“In the absence of other evidence, there is a rebuttable presumption that a parent is
entitled to receive a minimum of 25 percent of the parenting time for the child.” Minn.
Stat. § 518.175, subd. 1(g) (2018). The district court must generall y demonstrate some
awareness of this parenting-time presumption in its findings if properly raised by a party.
Dahl v. Dahl, 765 N.W.2d 118, 124 (Minn. App. 2009); see also Hagen v. Schirmers, 783
N.W.2d 212, 217 (Minn. App. 2010) (noting that court must “demonstrate an awareness
and application of the 25% presumption when the issue is appropriately raised and the court
awards less than 25% parenting time”). When the presumption is raised, the district court
must identify both its decision and th e reasons for that decision. Hagen, 783 N.W.2d at
217.
Here, father’s petition sought an award of custody and reasonable parenting time.
The district court ordered a custody and parenting-time evaluation , and t he county

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submitted an evaluation report to the distr ict court addressing these issues. During the
course of litigation, the district court came to understand that the parenting -time request
was no longer an issue because father was exclusively interested in sole legal and physical
custody of the child. After speaking with both parents, the county evaluator stated in the
report that, “I spoke with each parent individually about the benefits of [the child] having
parenting time with both parents. Each parent was adamant this would not occur. Neither
parent wavered on allowing the other parent time with the child.” The county evaluator
also noted that “as [the evaluator] was unable to observe the father and child together, it is
not possible to make recommendations as to parenting time.”
In its order, the d istrict court found that while parenting time with either parent
would be beneficial for the child, neither parent’s custody proposal would allow for such
contact. For this reason, the district court did not fully address father’s parenting -time
request. Nevertheless, the district court granted father parenting time “via telephone and
video-chat once per week.” We agree with father’s counsel that video -chat does not
constitute a valid form of parenting time . See, e.g. , Hagen 783 N.W.2d at 219
(acknowledging the emergence of video -call programs such as Skype to enhance long -
distance parent -child communication but noting that “electronic communication is not
parenting time and does not count toward s the 25% presumption”). Accordingly, we
remand to the district court to make findings of fact regarding father’s request for parenting
time. On remand, the distric t court, in its discretion, may choose whether to reopen the
record or proceed based on the record already before the district court.
Affirmed in part and remanded.