In re the Marriage of:

This opinion will be unpublished and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
A19-0905

In re the Marriage of:

Julia Loxley Hynnek n/k/a Julia Loxley Kaemmer, petitioner,
Respondent,

vs.

Eric Martin Hynnek,
Appellant.

Filed August 17, 2020
Affirmed
Jesson, Judge

Washington County District Court
File No. 82-FA-10-850

Jana Aune Deach, Susan C. Rhode, Moss & Ba rnett, P.A., Minneapolis, Minnesota (for
respondent)

Kevin S. Sandstrom, Christopher T. Ne lson, Eckberg Lammers, P.C., Stillwater,
Minnesota; and

Sean P. Stokes, The Law Offices of Sean P. Stokes, PLLC, Stillwater, Minnesota (for
appellant)

Considered and decided by Worke, Presiding Judge; Jesson, Judge; and
Schellhas, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
A contentious co-parenting relationship re sulted in the parties’ children running
away from their mother’s home twice, being placed in foster care, and sent to a residential
facility in another state. That relationship is reflected in a series of district court orders, as
well as this appeal. Appellant Eric Martin Hynnek challenges several decisions made by
the district court relating to the custody of his children and his parenting time. Because we
discern no legal error or abuse of discretion in those decisions, we affirm.
FACTS
Appellant Eric Martin Hynnek (father) ma rried respondent Julia Loxley Hynnek
n/k/a/ Julia Loxley Kaemmer (mother) in 1999. During their marriage, the parties had two
children, a son who is 17 and a daughter who is 15. In 20 10, mother filed a petition to
dissolve the marriage. Over a year later, the parties stipulated to a parenting plan. Pursuant
to that plan, the parties had joint legal and physical custody of the children. The plan also
outlined how the children’s residence would be divided between the parties and contained
additional provisions for holidays and vacations . The judgment and decree incorporated
the parenting plan, and the district court dissolved the parties’ marriage in October 2011.
Father’s Parenting-Time Challenge
A few years later, after father failed to cooperate with a custody evaluation, the
parenting consultant reduced father’s parenting time. Father filed a motion with the district
court challenging this decision. The district court agreed with father that the consultant did
not have the authority to act un ilaterally. As a result, the dist rict court reinstated father’s

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parenting time as outlined in the parenting plan and ordered the parties to participate in a
custody evaluation.
The custody evalua tor completed her report and recommendation in late 2015.
According to the evaluator, the children tended to speak highly of father and very critically
of mother. She observed that “it appears as though [the children] understand that they are
expected to provide negative information about their mother, a nd positive information
about their father.” Although the cust ody evaluator concluded that it was impossible to
know exactly how the children were being influenced, she opi ned that father was “most
likely the source of conflict in the parties’ co-parenting relationship” based on reports about
father’s anger and his disregard for court orders.
Based on her conclusions, the custody evaluator recommended that the district court
award temporary sole legal custody to mothe r. The evaluator also suggested temporarily
reducing father’s parenting time and ordering the family to partic ipate in therapy.
Additionally, the evaluator advised no contact between the off-duty parent and the children
and suggested the appointment of a special master to oversee the co-parenting relationship
and therapy.
Mother’s Request to Modify Custody
Following the custody eval uation, mother filed a motion seeking to implement its
recommendations. In an order issued in June 2016, the district cour t declined to grant
mother’s request for temporary sole legal cust ody. With regard to mother’s request to
reduce father’s parenting time, the district court denied the motion, characterizing the
decision as a “close call.”

4
The court stated that father appeared to be the source of the children’s inappropriate
knowledge of their parents’ disputes and observed “that the children are suffering from the
negative co-parenting relationship that the parties share.” Both parents bore some level of
responsibility. But in particular, father need ed to take steps to improve his behavior,
including his anger and disregard for the co urt’s orders and authority. Despite these
findings, the court found that there was not enough evidence of endangerment to “so
dramatically” reduce father’s parenting time.
Instead, the district court offered father “one last chance” to comply with court
orders, obtain meaningful therapy, and stop di sparaging mother in front of the children.
The court ordered both parties and the children to engage in therapy and required father to
undergo a psychiatric evaluation. Additionally, the court required communication to cease
between the off-duty parent and the children and appointed a special master with the
authority to expand or reduce parenting time.
Special Master Mediation
Over roughly the next two years, the sp ecial master mediated a significant amount
of conflict between the parties. Relevant to this appeal, in 2017, the special master reduced
father’s parenting time to only alternating weekends. This sanction stemmed from father’s
failure to submit a written therapy treatment plan and his revocati on of his therapist’s
authorization to speak with the special master. Additionally, as noted by the special master,
father did not minimize his negative behaviors toward mother as requi red by the district
court and the special master.

5
In June 2017, the children left mother’s house after midnight and rode their bikes
nearly ten miles, during a thu nderstorm, to father’s house. According to the children,
mother was emotionally and mentally abusive and said negative things about father in front
of them. The special master ordered father to return the children to mother’s home and
denied his request to restore his parenting tim e. After this incident, the special master
ordered each member of the family to participate in a psychological evaluation.
In November 2017, after receiving the resu lts of that evaluation, the special master
issued a report giving father an additional ove rnight with the child ren as part of his
parenting time. The evaluator opined that th e children’s current situation was “primarily
attributable” to father and that father had not responded to therapy, but also expressed that
“[t]he children do benefit from having a rela tionship with [father].” Nevertheless, the
evaluator cautioned that the benefit was “nearly outmatched by the disruption to their day
to day functioning and their increased anxiety from their parents’ conflict.”
Roughly four months later, in March 2018, the children ran away to father’s home
for a second time. Police were contacted. Daughter reporte d to the police that mother
“attacked her when she was in her bedroom on her cell phone” a little over a month earlier.1
The court ordered father to immediately return the children to moth er, but father did not
comply. The child ren remained with fath er for over three weeks and missed a trip to
Florida with mother over their spring break.

1 Son corroborated daughter’s accusation and stated that he saw scratches on daughter’s
hands. According to the children, mother threatened to prevent them from finishing the ski
season if they reported the incident. Because the ski season had concluded, they were now
reporting what happened.

6
Mother’s Renewed Request to Modify Custody
After the children ran away the sec ond time, mother filed a motion seeking
temporary sole legal and physical custody a nd suspension of father’s parenting time,
alleging that the children were endangered. In her affidavit, mother explained that she
would need to seek residential treatment for the children if they c ontinued to run away.
Mother noted that she was “asking for specific permission to get the children the immediate
help they need,” and she described investigating both programs in Minnesota and programs
run by “national experts.”
The district court found that mother established a prima facie case for modification
of custody, and awarded her temporary sole legal and physical cust ody of the children,
pending an evidentiary hearing scheduled ro ughly five months later. But during this
interim time, the district court permitted father to have parenting time every other weekend.
In doing so, the district court warned father that his parenting time would be suspended if
he failed to return the children to mother.2
Father did not return the children to mother by the de signated time. When police
arrived to return the children to mother, father yelled at the officers, questioned their
authority, and appeared to cause anxiety in the children. The children refused to return to
mother’s house and were placed in foster care. A few days later, out of concern that she
could not keep the children safe or prev ent them from running away, mother signed a

2 The district court’s order also authorized police or the sheriff to remove the children from
father’s home if he did not return the children to mother by the designated time.

7
voluntary placement agreem ent for the children to temporar ily remain in foster care,
pending a review hearing.
Father filed an emergency motion asking the court to appoint a guardian ad litem
for the children, remove the judge assigned to the case, and vacate the prior order
temporarily modifying custody. The distri ct court denied the request for a guardian
ad litem, finding that there was not enough evidence of ab use or neglect to support a
mandatory appointment and that budget constraints preclude d a permissive appointment.
But, citing father’s “d isturbing” behavior when police ca me to remove the children from
his home—particularly because father knew they were coming—the district court
concluded that it was not in the children’s best interests to be in contact with father.
Accordingly, based on father’s conduct and his failure to comply with the court order
requiring him to return the children to mother, the dist rict court temporarily suspended
father’s parenting time and prohibited him from communicating with the children.3
Between the district court’s April 17, 2018, order suspending father’s parenting time
and the full evidentiary hearin g on mother’s motion to modify custody, the district court
held at least three review hearings. At the first review hearing in late April 2018, the district
court learned that mother placed the children at a residential facility in Utah, consistent
with her desire to seek tr eatment for the children as not ed in her earlier affidavit. 4

3 The district court also found that father did not demonstrate prejudice by the judge that
would require removal.
4 The parties dispute the characterization of the Utah facility. Mother describes it as a
residential treatment facility with an emphasis on therapy. Father describes it as similar to
a juvenile detention facility. Without intending to find facts, we refer to it as a residential
facility.

8
According to mother, her decision to place the children in Utah was based on her belief
that the children would continue to run aw ay, and father’s continued alienation and
interference with therapy. She also noted that the children were on a waiting list for a
facility in Minnesota. Father requested th at the children be imme diately returned to
Minnesota and a guardian ad litem be appointed. Ruling from the bench, the district court
denied father’s motions.
At a second review hearing about one mo nth later, the district court addressed
father’s renewed motion for the children’s return, the appointment of a guardian ad litem,
and his request for the court to conduct an in camera interview with the children. The
district court denied father’s motions, but ordered counsel to facilitate signing of the
appropriate releases of information so father could obtain information about the children’s
adjustment and progress.5
Evidentiary Hearing Regarding Mother’s Motion to Modify Custody
In September 2018, the court held an ev identiary hearing regarding mother’s motion
to modify custody. At that hearing, moth er and the doctor who completed psychological
evaluations of each family member testified. The doctor opined that the children’s time in
Utah had been positive for them and that immediately returning the children to Minnesota
and reinstating equal parenting time would be “destructive” to the children. Further, the

5 The district court held a third review hear ing about two months later, which included
discussions about the children’s progress at the facility in Utah and the upcoming
evidentiary hearing.

9
doctor believed that father had emotionally and psychologically a bused the children.
Father did not testify or present any evidence or witnesses at the hearing.
After extensive analysis, the district cour t concluded that mother demonstrated a
change in circumstances and that modifica tion of custody served the children’s best
interests. The district court additionally concluded that the present custodial environment
endangered the children, and that any harm in changing the childre n’s environment was
outweighed by the advantage of the change. Accordingly, the district court granted
mother’s motion and awarded her sole legal and physical custody. With respect to father,
the district court reduced his ability to communicate with the children and ordered that his
parenting time remain suspended until the therapists recommended that it be reinstated.
Father filed a motion for amended findings and conclusions, which the district court
denied. But the district court noted that e ither party could file a motion with the court
regarding father’s parenting tim e and contact with the children. 6 Neither party did so.
Father appeals.7

6 At oral argument before this court, father stated that his pare nting time and ability to
communicate with his children remains suspended.
7 After father filed his notice of appeal, this court issued an order construing father’s appeal
as taken from the January 2019 order granting mother’s motion to modify custody and the
May 2019 order denying father’s request for amended findings and conclusions.

10
D E C I S I O N
I. The district court did not err by find ing that mother made a prima facie case
that the children were endangered.

Father first argues that the district court incorrectly found that mother made a prima
facie showing of endangerment to support modification of the custody arrangement. 8 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 of custody determinations
is limited to whether the [d istrict] court abused its discretion by making findings
unsupported by the evidence or by improperly applying the law.” Pikula v. Pikula ,
374 N.W.2d 705, 710 (Minn. 1985).
To modify a custody order, a court must find that a change in circumstances
occurred and modification is in the best intere sts of the children. Minn. Stat. § 518.18(d)
(2018). Additionally, the court must “retain the custody arrangement or the parenting plan
provision specifying the child’s primary residence that was established by the prior order”
unless one of the enumerated reasons applies. Id. One such reason is if the child’s physical
or emotional health and development is endang ered or impaired, if the benefits of the
change outweigh the likely harm caused by a change in environment. Id. The district court

8 In making this argument, father does not appe ar to challenge the district court’s order
modifying custody issued after the evidentia ry hearing. Rather, father focuses his
arguments on the district court’s April 2, 20 18, determination that mother established a
prima facie case for modification sufficient to warrant an evidentiary hearing. In his reply
brief, father asserts that he clearly has cha llenged the custody determination made in the
January 2, 2019, order. But the arguments in father’s principal brief focus on the district
court’s finding that mother made a prima facie showing that the children were endangered.
Accordingly, we focus our analysis on this issue.

11
has discretion to determine if the moving party has made a prima facie case for
modification. Szarzynski v. Szarzynski , 732 N.W.2d 285, 292 (Minn. App. 2007). But
once the district court determines that a party has made a prima facie case, it must hold an
evidentiary hearing on the motion. Goldman v. Greenwood , 748 N.W.2d 279, 284
(Minn. 2008).
Here, the district court found that, through her affidavit, mother demonstrated “that
the [c]hildren’s environment with [f]ather endangers their emotional development.”9 This
finding is not clearly erroneous. “When de termining whether a party has established a
prima facie case for child-custody modification, the court must accept the facts alleged in
the movant’s affidavit as true and disregard any contrary evidence.” Tarlan v. Sorensen,
702 N.W.2d 915, 922 (Minn. App. 2005).
In her affidavit, mother stated that she believed the children’s mental health was at
risk based on father’s behavior. Mother noted that the children believed that they must do
what their father wanted or they would lose him. Stated differently, mother wrote that the
children had “been placed in a position where they do not be lieve they can love both of
their parents.”
Mother also asked the court to examin e prior orders and the psychological
evaluations in the record. At the time of mother’s motion, the record contained a custody
evaluation from 2015 and a psychological evaluation from 2017. Both evaluations stated

9 In his reply brief, father shifts his argument to his assertion that no significant change in
circumstances existed in 2018. But father did not explicitly raise this argument in his
principal brief. Therefore, that argument is not properly before this court. See Szarzynski,
732 N.W.2d at 291 n.3.

12
that the parties’ co-parenti ng relationship negatively impact ed the children’s emotional
development. And both evaluations detailed how father’s behavior was detrimental to the
children’s relationship with mother. Further, the special master reports and district court
orders spanning over three years chronicle fa ther’s negative behavior toward mother and
describe how father influenced the children to view mother in a ne gative light. Mother’s
affidavit, read in the context of the entire record, provided a sufficient basis for the district
court’s endangerment finding.
This is particularly true because, when considering whether the movant made a
prima facie showing of endangerment, the district court evaluates the movant’s allegations.
See Amarreh v. Amarreh , 918 N.W.2d 228, 231 (Minn. App. 2018). By pointing to
evidence in the record, mother clearly alleged that the children’s emotional health was
endangered and that father was interfering in her relationship with the children. These
allegations are sufficient to support the district court’s finding. See id. at 231-32; see also
Lemcke v. Lemcke , 623 N.W.2d 916, 919 (Minn. App. 2001) (explaining that repeated
conduct by one parent designed to diminish a child’s relationship with the other parent may
be a basis to modify custody), review denied (Minn. June 19, 2001).10

10 In passing, father argues that mother’s motion to modify custody was procedurally
improper. First, he contends that mother’s motion was untimely because it was filed only
three days before a scheduled hearing, giving father no time to prepare. But father cites no
authority for this proposition. Father also contends that the mo tion was improper under
Minnesota Statutes section 518.18(b) (2018). That statutory provision states that “[i]f a
motion for modification has been heard, whether or not it was granted, unless agreed to in
writing by the parties no subsequent motion may be filed within two years after disposition
of the prior motion on its merits ” unless an exception applies. Minn. Stat. § 518.18(b).
One exception is if the court “has reason to believe that the child’s present environment

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II. The district court did not abuse its di scretion by suspending father’s parenting
time and prohibiting him from contacting the children.

Father also contends that the district court’s decision suspending his parenting time
and prohibiting him from contac ting the children constitutes an abuse of discretion. The
district court has broad discretion in deci ding parenting-time ques tions and will not be
reversed absent an abuse of discretion. Shearer v. Shearer , 891 N.W.2d 72, 75 (Minn.
App. 2017).
In deciding motions to modify parenting time, the court cannot restrict parenting
time unless it finds that “(1) pa renting time is likely to enda nger the child’s physical or
emotional health or impair the child’s emotional developm ent; or (2) the parent has
chronically and unreasonably failed to comply with court-ordered parenting time.” Minn.
Stat. § 518.175, subd. 5(c)(1)-(2) (2018). And if a parent alleges that parenting time with
the other parent places the child in danger of harm, “the court shall hol d a hearing at the
earliest possible time to determine the need to modify the order granting parenting time.”
Id., subd. 5(d) (2018).
The district court initially suspended father’s parenting time in April 2018 after he
refused to return the children to mother after they ran away the second time. At an earlier
hearing, the district court warned father that if he did not return the children to mother, his
parenting time would be immediately suspended. Father did not comply with the court’s
order, despite the knowledge that he was oper ating on his “one last chance” after his

may endanger the child’s physical or emoti onal health or impair the child’s emotional
development.” Id., (c) (2018). Mother’s motion falls within this exception.

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previous noncompliance. Accordingly, after a hearing regarding several motions by father,
the district court suspended father’s pare nting time temporarily and prohibited him from
communicating with the children.
In doing so, the court pointed to father’s “disturbing” behavior when police came to
return the children to mother. Additionally, it observed that father’s “decision to continue
to communicate his blame of [m]other for unfavorable [c]ourt rulings to the [c]hildren” led
the court to believe continued communication with father would fuel the children’s anxiety
and anger. And the district court concluded that it was not in the children’s best interests
to communicate with father at that time. In its January 2019 order following the evidentiary
hearing, the district court stated that father’s parenting time would remain suspended until
the children’s therapists recommended it be reinstated. But, in its May 2019 order, the
district court qualified that ho lding by noting that either party could file a motion to
reinstate father’s parenting time.
We cannot say that the district court abus ed its discretion by suspending father’s
parenting time. Although the district court’s order did not contain an explicit finding that
father’s parenting time would endanger the child ren or that father did not comply with
court-ordered parenting time, such a conclusion is implicit in the district court’s analysis.
And we defer to implicit findings. See Knapp v. Knapp, 883 N.W.2d 833, 837-38 (Minn.
App. 2016) (deferring to a district court’s imp licit resolution of factual questions). It is
evident that the district court believed that time and communication with father placed the
children’s emotional well-being at risk. A nd this concern is supported by the record,
particularly where father defied the court’s order and refused to re turn the children to

15
mother when the court warned him that such conduct would result in the suspension of his
parenting time.
Still, father contends that the district court did not comp ly with statutory
requirements before suspending his parenting time. According to father, the district court
failed to hold a hearing prior to the suspension of his parenting time. But the district court
did hold a hearing on April 16, 2018, regarding several of father’s motions before it issued
the order suspending father’s parenting time. And it is not clear from the record that father
requested a further hearing on the issue of hi s parenting time at that time. Additionally,
the court held an evidentiary hearing on mother’s motion to modify custody in
September 2018, which addressed several issu es relevant to the question of father’s
parenting time. Finally, we reiterate that father had notice th at certain actions on his part
could lead to the suspension of his parenting time. 11 Accordingly, we conclude that, on
this record, the district court acted within its discretion by temporarily suspending father’s
parenting time and his ability to communicate with the children.
III. The record does not establish that mother moved the children’s residence
out-of-state.

Next, father argues that the district court incorrectly applied the law when it failed
to require mother to immediately return the children to Minnesota after she sent them to a
residential facility in Utah. To the extent that th is question requires us to engage in

11 We note that, as of oral argument, father had not filed a motion w ith the district court
seeking reinstatement of his parenting time.

16
statutory interpretation, we cons ider such questions de novo. Cruz-Guzman v. State ,
916 N.W.2d 1, 7 (Minn. 2018).
Under Minnesota law, “[t]he parent with whom the child resides shall not move the
residence of the child to another state except upon order of the court or with the consent of
the other parent, if the other parent has been given parenting time by the decree.” Minn.
Stat. § 518.175, subd. 3(a) (2 018) (emphasis added). The st atute defines “residence” as
“the place where a party has established a permanent home from wh ich the party has no
present intention of moving.” Minn. Stat. § 518.003, subd. 9 (2018).
First, we observe that the stat ute requires us to analyze the children’s residence,
rather than mother’s. Altho ugh mother contends that becau se her residence remains in
Minnesota, the children’s residence conseque ntly remains here, we reject such an
interpretation of the statute. The statute provides that a parent “shall not move the residence
of the child to another state” without following the proper procedure. By using this
phrasing, the statute contemplates a scenario—like this one—where a parent may move or
seek to move the child’s resi dence to another state, desp ite the parent remaining in
Minnesota. In such cases, it defies logic to equate the parent’s residence with the child’s
residence. Rather, to determ ine if this statute applies, we must evaluate the child’s
residence—not the parent’s.
With that said, we conclude that the reco rd does not establish that mother moved
the children’s residence to Utah . First, mother expressed he r intent to seek residential
treatment for the children when she sought temporary sole custody in late March 2018. In
her affidavit, mother explained that she wa s “asking for specific permission to get the

17
children the immediate help they need,” which included seeking residential treatment for
them. She described “investigating” possible placements and mentioned two “national
experts” with special programs who work w ith children in similar situations and some
potential placements in Minnesota. It is clear from mother’s affidavit that, in
contemplating sending the children to a residential facility in another state, her intent was
to seek treatment for the children, rather than permanently move their residence.
Additionally, documentation in the record about the length of the children’s time in
Utah is scarce. At a review hearing in late April 2018, the court learned that mother sent
the children to the residential facility “less than a week ear lier.” And the children were
still in Utah when the evidentiary hearing occurred in September 2018. This is the only
information in the record explaining the length of the children’s placement in Utah.12 The
limited time period during which the record shows that the children were in Utah—four to
five months—fails to establish that mother moved the children’s permanent residence to
Utah. See generally Grunseth v. Grunseth , 364 N.W.2d 430, 432 (Minn. App. 1985)
(suggesting, in a different context, that a child attending an out-of-town boarding school
has not permanently moved), review denied (Minn. May 20, 1985).

12 In the order dated January 2, 2019, the distri ct court stated that it intended to have a
review hearing “as soon as possible after the [c]hildren return to Minnesota.” But the order
did not explicitly state whether the children were in Minnesot a or Utah at that time.
Similarly, at a review hearing in February 20 19, the district court noted that one purpose
of the hearing was to confirm that the children had returned to Minnesota. But again, the
children’s location was not explicitly confirmed. At oral argument before this court, both
parties agreed that the children are currently in Minnesota.

18
We emphasize that, when one parent seeks to place a child in an out-of-state facility
for residential treatment while custody and pa renting time disputes are ongoing, the best
practice is to seek approval from either the other parent or the court before such a placement
is made. We discourage parties from resor ting to “self-help” measures and seeking
approval after the fact. But here, where the record reflects that mother expressed her intent
to seek residential treatment for the children to the district court and that the placement was
for a relatively short period of time, we cannot say that mother moved the children’s
residence to another state. As a result, the district court did not abuse its discretion by
declining to order the children’s immediate return to Minnesota.
IV. The district court acted within its disc retion by denying father’s request for the
appointment of a guardian ad litem.

Father also contends that the district court erred by not appointing a guardian
ad litem for the children. Acco rding to father, daughter alle ged that mother abused her.
And he contends that Minnesota law mandates the appointment of a guardian ad litem in a
dissolution proceeding where a child alleges abuse.13
The statute governing the appointment of a guardian ad litem provides for two types
of appointments: permissive and required. Minn. Stat. § 518.165, su bds. 1-2 (2018). In
any dissolution proceedings where child custody is an issue, “the court may appoint a
guardian ad litem to represent th e interests of the child.” Id., subd. 1 (emphasis added).

13 Although we question the proc edural propriety of this argum ent, given that this appeal
is construed as taken from th e January and May 2019 district court orders, we address its
substance for two reasons. First, though the guardian ad litem request was first denied in
2018, the denial is referenced by the distri ct court in the January 2019 order. Second,
mother does not argue that this argument is improperly before this court.

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But, in the same type of proceeding, “if the court has reason to believe that the minor child
is a victim of domestic child abuse or neglect . . . the court shall appoint a guardian
ad litem.” Id., subd. 2 (emphasis added).
Here, the district court stated that the guardian ad litem program was “not currently
filling permissive appointments due to budget constraints.” Nothing in the record suggests
that this statement was erroneous. Accordin gly, the failure to order the permissive
appointment of a guardian ad litem was not an abuse of discretion.
Whether the district court was required to appoint a guardian ad litem based on
abuse allegations presents a closer call. The district court concluded that there was
insufficient evidence of child abuse or neglect to support the mandatory appointment of a
guardian ad litem.
The record reflects that daughter alleged that mother “attacked” her while she was
using her cell phone. According to daughter, mother threatened to prevent the children
from finishing the ski season if they told anyone about the alleged abuse. 14 The children
also told police, when they were attempting to remove them from father’s home, that
mother was abusive. The children’s alle gations were reported to the appropriate
social-services agency, but th e record does not suggest th at the agency recommended
criminal charges or instituted a child-protection proceeding.
We reiterate that a district court must appoint a guardian ad litem in cases where it
“has reason to believe” the child suffe red domestic abuse or neglect. Id. And this court

14 In a sealed exhibit, mother recounted the incident differently.

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has stated that “the prudent exercise of discretion” by appointing a guardian ad litem often
“serves the best interest of minor children,” particularly “when the interests of the children
may be different from those of the parents.” Madgett v. Madgett, 360 N.W.2d 411, 413
(Minn. App. 1985). But here, the record contains somewhat vague allegations of abuse
and there is nothing to suggest that social services took any further action after learning of
the abuse allegations. See Baum v. Baum , 465 N.W.2d 598, 600 (Minn. App. 1991)
(determining that the mandatory appointment of a guardian ad litem was not required where
the evidence of abuse was insufficient), review denied (Minn. Apr. 18, 1991). These vague
allegations, coupled with the extensive reports from therapists, the special master, and the
district court compiled over a several-year period do not lend credence to the allegation of
abuse and do not convince us that the district court had reason to believe that these children
were victims of abuse.15 Based on the particular circumstances of this case, we cannot say
that the district court erred in its conclusion that the record did not require the appointment
of a guardian ad litem. Reversal on this basis is not warranted.
V. The district court did not abuse its di scretion by not interviewing the children
about their custodial preferences.

Next, father contends the district court’s failure to interview the children about their
custodial preferences—and take those pref erences into accoun t—was an abuse of
discretion. It is within the district court’s discretion to decide whether to interview children
about their parenting preferences. Knott v. Knott, 418 N.W.2d 505, 509 (Minn. App. 1988).

15 Moreover, this record is clear that the district court, at least implicitly, discounted these
allegations. As an appellate court, we mu st defer to the district court’s credibility
determinations. See Knapp, 883 N.W.2d at 837-38.

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When a child is “capable by reason of ag e and intelligence” of stating a custodial
preference, the child’s preference “is entitled to weight in determining which of the parents
is to be awarded custody.” LaBelle v. LaBelle, 207 N.W.2d 291, 293 (Minn. 1973). Under
Minnesota law, if the district court determines that a child is “of sufficient ability, age, and
maturity to express an independent, reliable preference ,” it must consid er the child’s
preference when evaluating the best intere sts of the child before making a custody
determination. Minn. Stat. § 518.17, subd. 1(a)(3) (2018) (emphasis added). But in cases
where the child’s custodial preference is the product of ma nipulation by the noncustodial
parent, the district court is not require d to defer to the ch ild’s preference. See
Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn.
June 21, 1989); Schwamb v. Schwamb, 395 N.W.2d 732, 735 (Minn. App. 1986).
Here, the district court determined that the children’s preferences would not be
reliable due to father’s “aliena tion and manipulation.” In re aching this conclusion, the
court noted that “[t]he record is replete w ith evidence that [f]ather has manipulated the
[c]hildren against [m]other.” Because the di strict court concluded that the children’s
preferences were unlikely to be reliable and independent, it declin ed to interview the
children.
Based on the record in this case, the district court’s decision was within its wide
discretion. Although, in general, it is a better practice for the district court to interview the
children and independently dete rmine the reliability of their preferences, declining to do
so here was not an error. The record contains significant evidence—compiled over several
years—detailing father’s negative behavior toward mother an d his negative influence on

22
the children’s attitudes toward mother. 16 Nearly every professiona l involved in the case
suggested that father’s behavior—whether in tentional or not—influenced the children to
view mother in a negative way. Indeed, th e doctor who psychologically evaluated each
member of the family described the children’s sense of loyalty to their father as “extreme”
and “destructive,” resulting in the children “practicing alienation and defiance of legitimate
authority.”
The record provides ample support for th e district court’s conclusion that the
children’s custodial preferences would not be independent and reliable. As a result, the
district court’s decision not to interview the children and credit their custodial preferences
was not an abuse of discretion. See Schwamb, 395 N.W.2d at 735.
VI. Removal of the district court judge was not required.

Finally, father contends that the district court abused its di scretion by failing to
remove the judge from the case. We review th e denial of such a motion for an abuse of
discretion. Matson v. Matson, 638 N.W.2d 462, 469 (Minn. App. 2002).
Rule 63.03 of the Minnesota Rules of Civ il Procedure provides that “[a] judge or
judicial officer who has presided at a motio n or other proceeding” may only be removed
“upon an affirmative showing th at the judge or judicial offi cer is disqualified under the
Code of Judicial Conduct.” Under the Minnesota Code of Judicial Conduct, a judge must
disqualify himself or herself when “the judge’s impartiality might reasonably be

16 Father argues that the district court “per emptorily determined based on scant evidence
that the children had been manipulated” and disregarded the children’s clearly expressed
preference to live with him. This “scant evidence” argument mischaracterizes the record,
which is full of documentation detailing father’s influence over the children.

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questioned.” Minn. Code Jud. Conduct Rule 2.11(A). One instance when a judge’s
impartiality may be questioned is when “[t] he judge has a persona l bias or prejudice
concerning a party.” Minn. Code Jud. Conduct Rule 2.11(A)(1).
Here, the district court found that father did not affirmatively show that the judge
was prejudiced or biased. This finding was within the district court’s discretion. Father’s
motion for removal focused on hi s assertion that the district court lacked the authority to
issue certain orders and failed to follow procedur al rules. And he alleged that the district
court violated his due process rights by not allowing his counsel to make arguments at the
March 30, 2018, hearing. 17 But neither of these argum ents constitute the necessary
“affirmative showing” that the district cour t judge was disqualifie d from continuing to
preside over the case for a reas on outlined in the Minnesota Co de of Judicial Conduct.
Minn. R. Civ. P. 63.03.
Still, father contends that by “granting such extreme relief” based on a perceived
lack of evidence, the district court judge demonstrated his bias against father. And,
according to father, the alleged bias continue d throughout the case. But caselaw is clear
that prior adverse rulings “clear ly cannot constitute bias.” Olson v. Olson ,
392 N.W.2d 338, 341 (Minn. App. 1986). Other than adverse rulings, father does not point
to evidence in the record to demonstrate judicial bias. Indeed, “[t]he mere fact that a party
declares a judge partial does not in itself gene rate a reasonable question as to the judge’s

17 Father filed a written response to mother’s motion prior to the March 30, 2018, hearing.
And, according to the district court, at th e subsequent review he aring about two weeks
later, it provided father with th e opportunity to make any ad ditional arguments not in his
brief.

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impartiality.” State v. Burrell , 743 N.W.2d 596, 601-02 (Min n. 2008). Because father
failed to affirmatively show th at the district court judge was disqualified from presiding
over the case based on the Minnesota Code of J udicial Conduct, the district court did not
abuse its discretion by concluding that removal of the judge was not warranted.18
In sum, this case involves several years of parental conflict, expert involvement, and
district court oversight. The record reflects that the district court and the experts involved
provided thoughtful and thorough analysis at each step of this proceeding. We discern no
abuse of discretion or legal erro r in the district court’s deci sions throughout this case.
Reversal is not required.
Affirmed.

18 Mother asserts that father is precluded fro m raising this argument because he failed to
request that another district chief judge revi ew the denial of the removal request. We
address the substance of this argument in the interest of finality.