In re the Custody of: R. T. R., C. T. R., and S. C. T. R., Robby Romero, petitioner, 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This opinion will be unpublished and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
A19-0550

In re the Custody of:
R. T. R., C. T. R., and S. C. T. R.,
Robby Romero, petitioner,
Appellant,

vs.

Stacey Ann Thunder,
Respondent.

Filed March 9, 2020
Affirmed
Cleary, Chief Judge

Anoka County District Court
File No. 02-FA-16-1073

Robert A. Manson, Roseville, Minnesota (for appellant)

Heidi A. Drobnick, Swanson, Drobnick & Tousey P.C., Woodbury, Minnesota (for
respondent)

Considered and decided by Cleary, Chief Judge; Larkin, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant father challenges the district court’s award of custody of the parties’
children to respondent mother. Father also challenges the di strict court’s parenting-time
decision. We affirm.

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FACTS
Appellant Robby Romero (father) and re spondent Stacey Ann Thunder (mother)
have three children together, R.T.R., C.T.R., and S.C.T.R. Mother has another non-joint
child, S.T. Mother and father were never married. The parties lived together in Minnesota
from 2004 until father moved to New Mexico in 2009.
When father moved, the children resided initially with moth er. However, during
mother’s pregnancy with S.C.T.R., she developed back problems and needed help with the
older children, so R.T.R., C.T.R., and S.T. lived with father in New Mexico from January
2011 to approximately June 2012. During that time, mother visited the children frequently
and continued to provide for th e children financially. R.T.R. and C.T.R. attended school
in New Mexico when they lived with father.
During a visit to Minnesota in the summer of 2012, mother declined to send R.T.R.
and C.T.R. back to New Mexico. They have resided exclusively with her since then. The
children also live with S.T. and mother’s brot her, who helps care for the children. Since
2012, father has had sporadic phone contact and infrequent visitation with the children.
In 2016, father filed a petition to establish custody of R.T.R., C.T.R., and S.C.T.R.
He initially sought joint legal custody, sole physical custody to mother, and asked the
district court to grant him parenting time. He subsequently f iled an amended petition
seeking sole physical custody and joint legal cu stody. The district court granted father’s
request for supervised parenting time in September 2016. Father visited the children twice
but then declined to exercise parenting tim e because he did not believe it should be

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supervised. The district court denied several of father’s motions for unsupervised visits.
Father resumed parenting time in 2018.
The district court held a five-day trial in 2017 and 2018. Charlene Larson, a social
worker, testified on behalf of the children regarding a parenting- time report that she
prepared for this case. Lars on interviewed the children and several collateral contacts in
creating her report. She recommended that father be granted supervised parenting time.
In August 2018, the district court issued its findings of fact, conclusions of law, and
order for judgment granting sole legal custody and sole physical custody to mother, and
awarding father supervised parenting time. Father subsequently filed a motion for
amended findings or a new trial. The district court denied the motion for a new trial, but
granted in part the motion for amended findings . The district court amended five of its
findings of fact and omitted one conclusion of law from its August 2018 order. After entry
of judgment, father appeals.
D E C I S I O N
I. The district court’s custody determin ation was not an abuse of discretion.

A district court has broad discretion to provide for the custody of the parties’
children. Rutten v. Rutten , 347 N.W.2d 47, 50 (Minn. 1984). Our review on appeal is
limited to whether the district court abused its discretion by making findings unsupported
by the record or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710
(Minn. 1985). We will sustain a district cour t’s findings of fact unless they are clearly
erroneous. Id. We defer to a district court’s credibility determinations. Sefkow v. Sefkow,
427 N.W.2d 203, 210 (Minn. 1988).

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The best interests of the child are centra l to custody determinations. 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, emoti onal, cultural, spiritual, and
other needs, and the effect of the proposed arrangements on the
child’s needs and development;
(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 a nd 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 betwee n 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

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and minimize exposure of the child to parental conflict; and to
utilize methods for resolving di sputes regard ing 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 st atute 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 presump tion 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).
The law “leaves scant if any room for an appe llate court to question the [district] court’s
balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477
(Minn. App. 2000).
Here, the district court carefully considered each of the best-interests factors and
concluded that it was in the children’s best in terests to award sole physical custody and
sole legal custody to mother. Each factor is addressed in turn.
The children’s physical, emotional , cultural, spiritual, and othe r needs, and the effect of
the proposed arrangements on the children’s needs and development.

The district court concluded that mo ther’s home provided a more stable
environment for the children and that mother has provided the primary monetary support,
and health and dental insurance for the children. The district court found that, in contrast,
father lives in a former theate r with one bedroom and that hi s income is not stable. The
district court credited testimony that father is supported financia lly by other people and

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that he could be removed from his home at any time. The district court found that mother
has supported and encouraged the children to learn about their Native American culture.
The district court found that father’s methods of discipline are “inconsistent,
abusive, and irrational,” and that he has anger-management issues. The district court found
that mother’s disciplinary methods are better for the emotional health of the children and
that father’s anger and yelling causes distress to the children.
The record supports the district court’s findings on this factor. Mother testified that
she owns a five-bedroom home, and her brother lives with her to help care for the children.
Mother testified that the children are connected to their Ojibwe culture. They are enrolled
with the Lac Courte Oreilles Ojibwe nation, they learn about their culture through oral
tradition, and attend tribal events such as pow wows.
Regarding discipline of the children, mother explained that the children are expected
to listen to her, clean up after themselves, and contribute by doing chores. As punishment,
mother will take away an electronic device from the children, or in S.C.T.R.’s case, give a
time out lasting no longer than five minutes. She applies discipline consistently to all of
the children.
In contrast, mother testified that father’s disciplinary methods consist of yelling and
berating the children for about 15 to 20 minutes at a time. He name calls, repeats himself
over and over, and says mean things. He would also place the children in time outs in the
bathroom with the lights off fo r up to an hour at a time. Mother described father’s anger
as “stressful and scary.” She testified that father favors R.T.R over the other children.
Father’s sister also testified regarding he r observations of father ’s parenting abilities,

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stating that father yelled “all the time,” a nd described his yelling as “verbal abuse” and
screaming. Larson also expressed concerns in her report that father “yells a lot, makes you
feel worthless, has high expectations, and is narcissistic and manipulative.”
The record indicates that father’s anger is harmful to the children’s safety. Mother
testified that, on one occasion, father shove d C.T.R., causing her to fall. On another
occasion, he got angry and threw S.C.T.R., and mother had to catch him. Mother’s brother
testified that, on one occasion, father got a ngry at R.T.R. and threw him violently across
the couch, hurting R.T.R.’s arm and causing him to cry. Further, S.T., mother’s non-joint
daughter, stated that she has seen father grab C.T.R., pull her hair, and drag her to the
bathroom. Mother testified that once, S.C.T.R. broke an instrument, and father became so
angry that mother feared he was going to hurt S.C.T.R. The record supports the district
court’s findings under this factor.
Any special medical, mental health, or educ ational needs that the children may have that
may require special parenting arrangements or access to recommended services

The district court found that no evidence was provided as to any special needs of
the children. Father does not appear to challenge this factor.
The reasonable preferences of the children, if the court deems the children to be of
sufficient ability, age, and maturity to express an independent, reliable preference

The district court found that R.T.R. prefers to continue living with mother and that
C.T.R. has not stated a preference. It furthe r found that S.C.T.R. is too young to state a
preference. Larson testified consistently with the district court’s findings under this factor.
Father attacks the credibility of Larson’s report and the collateral contacts she spoke with,
arguing that Larson was “clearly not neutral.” But we defer to the district court’s credibility

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determinations. Sefkow, 427 N.W.2d at 210. The district court’s findings under this factor
are not clearly erroneous.
Whether domestic abuse has occurred in the parents’ relationship; the nature and context
of the domestic abuse; and the implications of the domestic abuse for parenting and for the
children’s safety, well-being, and developmental needs

The district court found that there has b een domestic abuse of mother by father and
that the children have witnessed the domestic abuse. It found that this domestic abuse has
affected father’s parenting and has created fear of father in the children. Mother testified
that father grabbed her neck on one occasion when he was angry. She also testified that on
another occasion, he got angry and slammed a cupboard on her knee. She testified that the
children witnessed his anger and outbursts. The record supports the district court’s findings
under this factor.
Any physical, mental, or chemical health issue of a parent that affects the children’s safety
or developmental needs

Under this factor, the district court found that, other than father’s anger and abuse,
there is no evidence that either party has physical or chemical health issues that affect the
children’s safety or developmental needs. Fo r reasons stated above, the district court’s
findings regarding father’s anger and abuse are supported by the record.
The history and nature of each parent’s participation in providing care for the children
The district court found that the children have lived exclusively with mother since
2012 and that mother has primarily cared for the children throughout their lives. It found
that mother takes care of the children’s daily needs and that her brother lives with her and
helps to provide care. Mother travels occasionally for work, but she has family that cares

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for the children when she is gone. Father travels extensively for work and spends several
weeks per month away from New Mexico.
The record supports these findings. Moth er testified that when the parties lived
together, she was the primary caretaker of th e children. And when father moved to New
Mexico, mother provided for the children financially, they visited with mother frequently,
and spoke to her on the phone daily. Mother also maintained their regular medical and
dental appointments while they were livi ng in New Mexico durin g their visits to
Minnesota. Mother also testif ied that when father took the children to public places, he
failed to supervise them.
Moreover, for the five years prior to trial, the children lived exclusively with mother.
She has been the sole parent to arrange the children’s involvement in extracurricular
activities, school activities, and has taken care of their daily needs. Mother has provided
the children with stability and a predictable environment. Father testified that he has not
provided any financial support to his children over the last four years. Additionally, mother
testified that father’s phone contact with th e children was sporadic and inconsistent. The
record supports the district court’s findings on this factor.
The willingness and ability of each parent to provide ongoing care for the children; to meet
the children’s ongoing developmen tal, emotional, spiritual, and cultural needs; and to
maintain consistency and follow through with parenting time

The district court found that , while both parties are willing and able to care for the
children, mother has better provided for the children’s ongoing developmental, emotional,
spiritual, and cultural needs, and she has demonstrated the commitment and means to
continue doing so. The district court found that mother’s housing and income can provide

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better stability for the children, compared to that of father’s. In contrast, father has
exercised minimal parenting time with the child ren even after his request for supervised
parenting time was granted.
The record supports these findings. Moth er testified that she provides ongoing day-
to-day care for the children. Mother testified that she is able to care for the children if they
are sick, and that she has family members who are able to care for the children if she needs
backup.
Father testified that he travels extensively. For example, in the nine months leading
up to trial, he spent several weeks per month outside of New Mexico. Father testified that
he does not have a rental agreement for his house, and the record indicates that the building
in which father resides was for sale at the time of trial. Mother testified that father’s living
situation is not appropriate for her children. The record supports the district court’s
findings that mother is better able to provide ongoing care and to provide for the children’s
needs.
The effect on the children’s well-being and development of changes to home, school, and
community

The district court found that the children are well adjusted to school, family life, and
their community in Minnesota. They have a lo t of friends and are happy in their current
environment. It found that the school th at the children attende d in New Mexico was
substandard.
The record supports these findings. Moth er explained that the children like their
teachers and have a lot of friends at school a nd in their neighborhood in Minnesota. The

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children also have relatives who live near by, including an aunt, uncles, and their
grandfather. They spend holidays with extended family. Further, mother testified that the
children are happy in her care and that they re gressed when they were in father’s care.
Mother also testified that the children are in activities in school and in the community.
Mother testified that when the children returned to Minnesota after attending school in New
Mexico, they were behind other children their age academically. She stated that she has
hired tutors to help the children in areas in which they are struggling at school.
Moreover, Larson testified that she woul d have concerns about the children
traveling out of state for long periods of tim e based on the limited contact they have had
with father over the last five years. She testified that it would not be in the children’s best
interests for them to move to New Mexico. The record supports the district court’s findings
under this factor.
The effect of the proposed arrangements on the ongoing relationships between the children
and each parent, siblings, and other significant persons in the children’s life

The district court found that the child ren have significant relationships with
mother’s family members in Minnesota and that there is no evidence that the children have
significant relationships with anyone in New Me xico other than father. The court found
that granting physical custody to mother woul d allow the children to have contact with
their extended family and would allow father to visit the children in Minnesota.
The record supports these findings. Moth er testified that she has a close and loving
relationship with all of the children. The ch ildren live with their half-sister, with whom
they have lived their entire lives. They also live with their uncle and have a loving

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relationship with him. Mother testified that the children do not have any relatives in New
Mexico other than father.
The benefit to the children in maximizing parenting time with both parents and the
detriment to the children in limiting parenting time with either parent

The district court found that mother has accommodated father’s requests for
parenting time when he is in Minnesota. The district court found that the children have
more significant relationships with family in Minnesota, and the detriment of limiting
father’s parenting time is reasonable under the facts of this case.
The record supports these findings. As stated above, the children have significant
relationships in Minnesota. Further, mother testified that the children are happy in her care
and that they regressed when they were in father’s care. The record indicates that limiting
parenting time with mother would be detrimental to the children.
Except in cases where domestic abuse has o ccurred, the disposition of each parent to
support the children’s relations hip with the other parent and to encourage and permit
frequent and continuing contact between the children and the other parent

The district court found that mother ha s not prevented father from seeing the
children but that father has refused mother and the court’s reasonable limitations on his
parenting time. It found that mother will not let the children go and visit father in New
Mexico without a court order regarding parenti ng time. The district court found that this
was a reasonable position given the circumstances of this case.
The record supports these findings. The children informed Larson that mother does
not prevent them from speaking to father. Moreover, when father was in Minnesota,

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mother accommodated his requests to see the children. The record indicates that mother is
willing to cooperate so that father can exercise parenting time.
The willingness and ability of the parents to coop erate in the rearing of their children; to
maximize sharing information and minimize exposure of the children to parental conflict;
and to utilize methods for resolving disputes regarding any major decision concerning the
life of the children

The district court found that the par ties are unable to cooperate and share
information with each other regarding the children.
The record supports this finding. Mother provided ample testimony that, based on
her experience with father, if she disagreed w ith him, conflict arose. She explained that
father was manipulative and controlling over her. For example, when the children were in
New Mexico, mother had arrang ed for the children to come visit her in Minnesota, but
father threatened not to bring the children unless mother deposited money into his business
bank account. Mother testified that it would be very difficult to co -parent with father
because if she does not agree to what he wants, then he views her as not being cooperative;
it is “his way or no way.” She explained that the only way the issue will resolve is if she
agrees to father’s demands. The record supp orts the district court’s findings under this
factor.
The district court balanced the factors a nd concluded that it was in the children’s
best interests to award sole physical custody and sole legal custody to mother. In light of
the district court’s detailed factual findings under the statutory factors, which are supported
by the record, we affirm the district court’s custody determinations.

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II. The district court’s parenting time award was not an abuse of discretion.

Father argues that he is entitled to an aw ard of at least 25 pe rcent parenting time
under Minn. Stat. § 518.175, s ubd. 1(g) (2018), which provides that there is a rebuttable
presumption that a parent is entitled to receiv e a minimum of 25 percent of the parenting
time for their child.1 Father also challenges the district court’s order that his parenting time
must be supervised and that he must partic ipate in reunification therapy before he can
exercise parenting time.
Rights to parenting time “are not absolute and are to be exercised only when in the
best interest of the child.” Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978). A district
court has broad discretion to decide paren ting-time questions and will not be reversed
absent an abuse of discretion. Shearer v. Shearer, 891 N.W.2d 72, 75 (Minn. App. 2017).
We will uphold the findings of fact underlying the district court’s parenting-time decision
unless they are clearly erroneous. Dahl v. Dahl, 765 N.W.2d 118, 123 (Minn. App. 2009).
The parenting-time statute requires that th e district court grant parenting time “as
will enable the child and the parent to maintain a child to parent relationship that will be in
the best interests of the child.” Minn. Stat. § 518.175, subd. 1(a) (2018). The statute allows
for restrictions on parenting time if the district court finds “that parenting time with a parent

1 Mother argues that caselaw indicates that this presumption only applies to actions to
modify custody, rather than ac tions establishing custody. See Hansen v. Todnem , 908
N.W.2d 592, 596 (Minn. 2018 ) (concluding that Minn. Stat . § 518.17 applies to initial
custody and parenting-time determinations, while section 518.175 applies to parenting time
modifications). Mother contends that, because this is an initial custody determination, the
presumption does not apply here. For purpos es of this opinion, we assume without
deciding that the 25-percent presumption is relevant here.

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is likely to endanger the child’s physical or emotional health or impair the child’s emotional
development.” Id., subd. 1(b) (2018). Such restrictions can relate to time, place, duration,
or supervision as the circumstances warrant. Id. The ultimate question in parenting-time
matters is the best interests of the child. Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App.
1984).
The district court concluded that supervis ed parenting time with father was in the
children’s best interests. It concluded that father would be allowed to visit the children one
weekend per month for up to two hours. The district court also concluded that reunification
therapy was in the children’s best interests.
We have held that the district court generally must demonstrate some awareness of
the 25 percent parenting-time presumption in its findings if properly raised by a party.
Dahl, 765 N.W.2d at 124. But even if a distri ct court fails to do so, the error could be
harmless if the district court supp orts its decision in other ways. See Minn. R. Civ. P. 61
(requiring harmless erro r to be ignored); see also Grein v. Grein , 364 N.W.2d 383, 387
(Minn. 1985) (declining to remand the case to the district court when the district court
would undoubtedly make findings satisfying th e statutory language to reach the same
result). Parenting-time allocations less than 25 percent can be justified by reasons related
to the children’s best interests. Hagen v. Schirmers , 783 N.W.2d 212, 218 (Minn. App.
2010).
Here, the district court carefully analyzed the 12 best-interests factors, made detailed
findings under each factor, and considered parenting time in its best-interests analysis. The
district court acknowledged that the distance between the parties made it difficult for father

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to maximize parenting time, but also found that under the circumstances of this case,
mother’s refusal to let the ch ildren visit father in New Mexi co was reasonable. This is
especially true in light of th e district court’s finding that father has caused physical harm
to the children and that, on one occasion, father refused to bring the children back to mother
until she deposited money into his account. More over, father has declined to cooperate
with the district court’s limitations on parenting time. The record provides ample support
for the district court’s findings. Therefore, wh ile the district court did not explicitly state
that mother overcame the presumption that father be awarded at least 25 percent parenting
time, reversal is unwarranted.
Father did not brief his argument that he should be entitled to unsupervised
parenting time and that he should not have to participate in reunification therapy. He raised
this argument for the first time at oral argument, and it is therefore not properly before us.
See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (issues not briefed are not properly
before this court). Nonetheless, the distri ct court’s decision was not an abuse of its
“extensive” discretion to decide parenting-time questions. See Manthei, 268 N.W.2d at 45.
Again, the district court analyzed the 12 best-i nterest factors in its decision. The district
court made findings that father’s disciplinar y methods, including his anger and yelling,
have caused distress to the child ren as well as physical harm. See Minn. Stat. § 518.175,
subd. 1(b) (providing for limitations on pa renting time if there is a likelihood of
endangerment to the children’s physical or em otional health or harm to the children’s
emotional development). These findings are su pported by the record. The district court

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did not abuse its discretion in requiring that parenting-time be supervised, at least initially,
and by requiring that father participate in reunification therapy.
Affirmed.