In re the Paternity of: B. L. T., T. L. M., 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This opinion will be unpublished and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
A19-1730

In re the Paternity of: B. L. T., T. L. M.,
Appellant,

vs.

C. G. B. T.,
Respondent.

Filed August 17, 2020
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Scott County District Court
File No. 70-FA-18-11239

Laurie Mack-Wagner, Elizabeth E. Due, Mack & Santana Law Offices, P.C., Minneapolis,
Minnesota (for appellant)

Kay Nord -Hunt, Michelle K. Kuhl, Lo mmen Abdo, P.A., Minneapolis, Minnesota (for
respondent)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant, the mother of the parties’ child, argues that the district court abused its
discretion in sett ing the parenting -time schedule; erred in awarding joint custody after

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finding that (1) respondent, the father, had committed domestic abuse without addressing
whether the statutory presumption against joint custody in cases where domestic abuse has
occurred had been rebutted and (2) none of the best -interest factors supported respondent
having custody ; and erred in calculating child support. Because we see no a buse of
discretion in the parent ing-time schedule, we affirm it. We reverse the custody
determination and remand for an award of sole legal and physical custody to appellant
because the statutory presumption against joint custody in cases where domestic abuse has
occurred was not rebutted and the district court’s findings support sole legal and sole
physical custody with appellant; and we reverse and remand the child -support awards for
correction because the parties agree t hat there are clerical errors or miscalculations in the
awards.
FACTS
Appellant T.L.M. and respondent C.G.B.T. are respectively the mother and father
of a daughter, B. L.T., who was born in October 2015. Appellant has been her primary
caregiver.
In 2017, during a verbal dispute, respondent went to get a handgun and brought it
to the room where appellant was with B.L.T. This incident met the statutory definition of
domestic abuse.1 The parties separated in January 2018, and their relationship since then
has been generally acrimonious. The initial schedule of approximately equal parenting

1 See Minn. Stat. § 518B.01 (2016) (defining domestic abuse).

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time did not work wel l; a ppellant then limited respondent’s parenting time to alternate
weekends.
Appellant brought this action in June 2018 to establish custody and parenting time.
The first temporary order set joint legal and physical custody and an equal 2-2-3 parenting-
time schedule. Appellant then got a new job that requir ed her to drop B. L.T. off by 8:00
a.m. and pick her up at 6 :00 p.m.; she found a daycare that would accommodate these
times, but the daycare does not permit children to remain longer than ten hours. When
respondent refused to use or to pay for the daycare, the district court issued a second order
requiring exchanges to t ake place at daycare and modifying respondent’s child -support
obligation.
Following trial in May 2019, the district court (1) issued a parenting -time schedule
that had B. L.T. spend nine of every 14 nights with appellan t and five with respondent;
(2) found that domestic abuse had occurred, but did not address the statutory presumption
against joint custody or indicate that it had been rebutted; (3) made findings supported by
the record that seven of the 12 best -interest factors relevant to a custody determ ination
favored appellant, two did not apply, three were neutral, and none favored respondent ;
(4) nevertheless awarded the parties joint le gal and joint physical custody; and (5 ) set
respondent’s monthly child -support payment and a payment of back child s upport.
Appellant challenges all of these determinations.

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D E C I S I O N
1. Parenting Time
A district court has broad discretion in deciding parenting -time questions and w ill
not be reversed absent an a buse of discre tion. Shearer v. Shearer , 891 N.W.2d 72, 75
(Minn. App. 2017).
Respondent suggested the 14-day 2-2-3 schedule the parties had previously used. It
provided seven overnights with each parent; six transfers, of which four were on weekdays
and two on weekends; and one day each weekend with each parent.
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
App App Rsp Rsp App App App
Rsp Rsp App App Rsp Rsp Rsp

Appellant proposed a 14-day schedule in which respondent had five overnights, two
on Wednesdays, when he picked B.L.T. up at daycare and dropped her off Thursday
mornings, and three on alternate weekends, when he picked her up Friday afternoon and
dropped her off Monday morni ng. This schedule included six exchanges, all done on
weekdays at daycare, so the parties could avoid meeting each other.
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
App App App App/Rsp2 Rsp/App App/Rsp Rsp
Rsp Rsp/App App App/Rsp Rsp/App App App

2 The first parent listed drops B.L.T. off at daycare, and the second picks her up.

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The district court adopted a 14-day schedule very different from respondent’s but
fairly similar to appellant’s: it also gave respondent five nights with B. L.T., including
Friday afternoon to Monday morning on alternate weekends . It involved only four
exchanges, three on weekdays and one on alternate weekends, when appellant picks B.L.T.
up at respondent’s home at noon on Saturdays.
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
App App App App App App/Rsp Rsp
Rsp Rsp/App App App App/Rsp Rsp Rsp/App

Respondent does not challenge the district court’s schedule , but a ppellant has four
objections to it.
First, she argues that it was an abuse of discretion to give respondent every Friday
night and Saturday morning as well as alternate full weekends, because appellant’s
weekend time is limited to part of alternate Saturdays and alternate Sundays. The district
court agreed that it was “ appropriate and in the best interest s of [B.L.T.] for both parents
to have some weekend parenting time with [her] ,” and each parent has some. Appellant
has not shown that it was an abuse of discretion to grant respondent more weekend time
when appellant has almost two-thirds (64%) of the total time. When appellant picks B.L.T.
up at noon on alternate Saturdays , B.L.T. remains with her until 8:00 a.m. the following
Friday, or six nights . When respondent picks B .L.T. up at 3:00 p.m. on Friday for his
weekends, she remains with him only until Monday morning, or three nights.

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Second, the district court provided that if appellant “wishes to make full week end
plans with [B .L.T., she] will need to work together [with respondent] to come to an
agreement” and the partie s “may agree in writing to a parenting time schedule change,
whether one-time or recurring, [which] neither party may unilaterally change.” Appellant
argues that she is required to “negotiate with her abuser” when she wants additional
weekend time. But the weekend arrangements can be made in writing, and the parties are
directed to keep their written communication courteous and businesslike . R espondent
notes that he did not propose the schedule of having B .L.T. every Friday night and says
“[t]here is no reason to assume he would be unwilling to negotiate a different schedule with
[appellant.]”
Third, a ppellant argues that the district court’ s schedule compels her to see
respondent once every two weeks for the Saturday exchange. But the district court’s order
explicitly permits either parent to “designate a trusted adult to facilitate a parenting time
exchange,” and appellant has previously a sked her mother or her sister to perform this
function. Therefore, appellant can avoid seeing respondent if she feels that is necessary.
Fourth, appellant argues that she cannot take B .L.T. on a seven-day vacation, even
though each parent is given two such vacations per year, because vacation may not impinge
on the other parent’s weekend time, and respondent has B.L.T. every Friday night. But the
district court’s order provides that “[v]acation time takes priority over the regular parenting
time schedule,” so B.L.T. would not need to cut short a vacation with appellant to resume
her scheduled parenting time with respondent. If appellant began a vacation on the Monday

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after respondent’s weekend, she could actually have B. L.T. for 11 days : after the seven -
day vacation, appellant’s parenting time would resume for the next four days.
The district court’s schedule also avoids another problem resulting from the daycare
requirement that a child stay no longer than ten hours. Appellant’s job makes it impossible
for her to pick B .L.T. up before 6:00 p.m.; respondent’s job makes it difficult for him to
drop her off after 8:00 a.m. Problems have arisen because respondent dropped her before
8:00 a.m. and appellant could not pick her up until 6:00 p.m. The district court’s schedule
has respondent dropping B. L.T. off and appellant picking her up only once every two
weeks, while appellant’s schedule had this occur three times every two weeks. The district
court’s efforts to devise a parenting-time schedule that accommodates both parents’ work
schedules and the daycare’s ten-hour maximum were not an abuse of discretion.
2. Statutory Presumption against Joint Legal and Joint Physical Custody
Interpretation of the rebuttable statutory presumption again st joint legal and joint
physical custody in cases where domestic abuse has occurred “requires an interpretation of
law[; therefore,] our review is de novo.” Thornton v. Bosquez , 933 N.W.2d 781, 790
(Minn. 2019).
The court shall use a rebuttable presumption that joint legal
custody or joint physical custody is not in the best interests of
the child if domestic abuse, as defined in section 518B.01, has
occurred between the parents. In determining whether the
presumption is rebutted, the court shall consider 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.

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Minn. Stat. § 518.17, subd. 1 (b)(9) (201 8). “‘Domestic abuse’ means the following, if
committed against a family or household member by a family or household member: . . .
(2) the infliction of fear of imminent physical harm, bodily injury, or assault . . . .” Minn.
Stat. § 518B.01, subd. 2(a) (2018).
The district court found that:

domestic abuse, as defined in [Minn. Stat. § 518B.01] has
occurred in the parents’ relationship. [Respondent] admitted
that during a verbal argument with [appellant, respondent]
retrieved a handgun and returned with it to an area of the house
where [appe llant] and [B. L.T.] were present. [Respondent]
claimed self -defense because he believed [ appellant] was
calling in family members to assist her.

Although the district court explicitly found that statutory do mestic abuse had
occurred, it awarded joint legal and joint physical custody without addressing whether the
statutory presumption created against joint custody by domestic abuse had been rebutted.
Minn. Stat. § 518.17, subd. 1(a)(4) (2018), requires a di strict court not only to
determine whether statutory domestic abuse has occurred;
[it] requires the [district] court to give special focus to “the
nature and context of the domestic abuse and the implications
of the domestic abuse for parenting and for th e child’s safety,
well-being, and developmental needs. ” Minn. Stat. § 518.17,
subd. 1(a)(4). These same factors must also be considered by
the [district] court in determining whether the presumption
against joint custody is rebutted. See id., subd. 1(b)(9).

Thornton, 933 N.W.2d at 793 . Nothing in the district court’s findings reflects any
consideration of these factors to support its implicit conclusion that the presumption had
been rebutted. Moreover, “[p]arties can rely upon a variety of evidence fr om various
sources to rebut the presumption, including witness testimony, guardian ad litem reports,

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parenting assessments, psychological or chemical health reports, supervised visitation
reports, and other materials.” Id. at 792-93, n.6. The district court’s decision does not
mention any of these, or any other evidence supporting rebuttal.
Because the referee found that [the respondent]
committed domestic abuse against [the appellant], the referee
was required to assess whether the statutory presumption that
“joint legal custody or joint physical custody is not in the best
interests of the child” had been rebutted. Minn. Stat. § 518.17,
subd. 1(b)(9).

Thornton, 933 N.W.2d at 788 (emphasis added). It may be inferred that a district court
making a finding of domestic abuse in a custody case is required to acknowledge the
presumption against joint custody and make findings as to whether the presumption has
been rebutted. 3 Absent any explanation of why the presumption against joint le gal and
joint physical custody has been rebutted, neither the parties nor a reviewing court has any
basis for assuming that it was rebutted.
3. Award of Joint Legal and Joint Physical Custody
Even if the presumption had been rebutted, the di strict court’s findings do not
support an award of joint legal and joint physical custody. “Appellate review of custody
determinations is limited to whether the district court abused its discretion by making

3 Respondent relies on an unpublished opinion of this court for the propositions that a court
may implicitly find that the presumption against joint legal and physical custody in cases
where domestic abuse has occurred has been rebutted and need not make detailed findings.
But unpublished opinion s of this court lack precedential value. Minn. Stat. § 480A.08 ,
subd. 3 (2018). Further, the unpublished opinion respondent relies on is distinguishable
because, in that case, the district court did not explicitly find that the respondent had abused
the appellant. Here, the district court did explicitly find that respondent had abused
appellant.

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findings unsupported by the evidence or by improperly applying the law.” Pikula v. Pikula,
374 N.W.2d 705, 710 (Minn. 1985). Here, the district court’s findings on the best-interest
factors are themselves supported by the evidence, but Minn. Stat. § 518.17, subd. 1(a)
(2018), requiring the findings on the factors to be considered in making a custody
determination, was not applied.
As to factor one, the child’s physical, emotional, cultural, spiritual, and other needs,
the district court found that , while the parties were cohabiting, respondent “struggled to
meet [B.L.T.]’s physical needs” and “would summon [appellant] when [B.L.T.] was in his
care because he was unable or unwilling to meet [her] needs.” Respondent “failed to
provide adequate safety for a toddle r by smoking marijuana around [her], fail[ed] to
consistently use a life jacket for [her] while on a boat, fail[ed] to ensure she was properly
secured in a car seat, fail[ed] to store his firearms safely, [and] us[ed] an unsecured baby
bike seat for her.” Respondent “also failed to adequately respond to [B.L.T.’s] illness and
relie[d] on [appellant] for at-home care;” he “testified that he redirects [B .L.T.] when she
is emotionally upset, and that he meets her emotional needs by ‘being with her all the
time.’” Finally, respondent’s “behavior in relation to parenting time exchanges at [the
daycare center] caused the Court concern insofar as [his] lack of understanding as to why
his conduct might be creating undue stress for his child.” This factor favored appellant.
As to factor two, the child’s special medical needs , the district court found that,
although B.L.T. is severely lactose intolerant and respondent “claims to have been an active
participant in [her] medical care since her birth, [he] testified that he is only aware of
[B.L.T.] being lactose intolerant ‘from what he has been told’ by [appellant].’” Respondent

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refused to keep a diary of B .L.T.’s food intake for appellant, but said he would keep one
for himself; he “testified that if [B .L.T.] eats dairy while in his care, he gives her lactose
pills” and that “he feeds [B .L.T.] a gluten free diet, though he admitted he did not know
what gluten was.” This factor favored appellant.
As to f actor three, the reasonable preference of the child , the district court found
that it did not apply because B.L.T. was then only three years old.
As to factor four, whether domestic abuse had occurred, the district court found that
it had occurred. “ [D]uring a verbal argument with [appellant, respondent] retrieved a
handgun and returned with it to an area of the house where [appellant] and [B. L.T.] were
present.” The district court also found that respondent “continues to send repeated and
harassing text messages to [appellant] and expresses a significant level of animosity toward
her[, which] inhibits his ability to communicate with [appellant] and make decisions in
[B.L.T.]’s best interest.” This factor favors appellant.
As to factor five, any physical, mental , or chemical health issue of a parent , the
district court noted that B .L.T.’s maternal grandmother “testified that . . . when she was
requested to pick up [B .L.T.] when she was sick[, respondent] was in his truck with the
child with the windows closed . . . . Upon opening the car door, [the grandmother] noted a
strong odor and visible cloud of marijuana smoke and noted [B .L.T.] to be covered in her
own vomit.” The district court noted that it had “ serious concerns about [respondent’s]
willingness to us e marijuana while caring for [B .L.T.] and even more disturbingly in a
small enclosed space with [her].” This factor favors appellant.

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As to factor six, the nature of each parent’s participating in caring for the child, the
district court found that, while respondent had sometimes provided day -to-day care for
B.L.T. after the parties’ separation, he “has shown poor judgment when [she] is sick and
by exposing her to conflict between [himself and appellant and appellant’s] family
members.” This factor favored appellant.
Factor seven, the willingness and ability of each parent to provide ongoing care for
the child and follow through with parenting time, and factor eight, the effect on the child
of changes to home, school, and community, were found to be neutral . Factor nine , the
effect of the proposed arrangement on the relationships between the child and each parent,
was also found to be neutral, although in relation to that factor, the district court found that
respondent “has refused to allow [appellant’s] mother or [her] sister to pick [B .L.T.] up
from daycare and has interfered w ith exchanges to prevent anyone other than [appellant]
from picking [her] up.”
As to factor ten, the benefit to the child in maximizing time with both parents , the
district court found that appellant’s 14 -day parenting-time plan had more consistency for
B.L.T. and fewer exchanges than respondent’s plan, so that this factor favored appellant.
As to factor eleven, the disposition of each parent to support the child’s relationship
with the other parent, the district court noted that it does not apply in cases where there has
been domestic abuse and therefore does not apply here.
As to factor twelve, the willingness and ability of parents to cooperate in rearing the
child, the district court found that respondent “has failed to consist ently abide by the
Court’s [o]rders regarding communications and tries to capitalize on what he sees as

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loopholes;” for example, he gives notice every 30 days that he plans to take B .L.T. out of
state rather than comply with the requirement that he give notice when he does plan to take
her. More significantly, the district court found that, on more than one occasion,
respondent “has taken rigid and adversarial positions on issues that are relatively minor”
and appears to “value[] winning an argument over w hat’s best for [B .L.T.].” This factor
also favors appellant.4
After finding that, of the twelve factors, three were neutral, seven favored appellant,
none favored respondent, one did not apply because of B .L.T.’s youth, and one did not
apply because respondent had abused appellant, the district court concluded that joint legal
and joint physical custody were not only feasible but were in B.L.T.’s best interests. Its
only explanation for this decision is two sentences: “N either of these parents is incapable
of working jointly to raise their child, though some behavior has indicated an unwillingness
to try. Decisions going forward must be child -focused, forcing both parents to set their
animosity for each other aside.”
But an award of joint cus tody must be based not only on the parties’ theoretical
ability to cooperate but on their actual willingness to do so . “Joint custody should not be
used to coerce cooperation from parents who have been unable to cooperate or amicably
settle disputes about their children.” Chapman v. Chapman, 352 N.W.2d 437, 439 (Minn.

4 In addition to its findings on the factors, the district court found that “[respondent] actually
avoided service of [this] action and even forfeited parenting time to evade process[,]”
“failed to follow the Court’s directives as to communications with [appellant,]” and “took
every opportunity to interfere with the parenting time exchanges” ; it also noted that “the
record is replete with [respondent’s] hostile text messages and obstreperous conduct.”

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App. 1984) , overruled on other grounds by Hansen v. Todnem , 908 N.W.2d 592, 597
(Minn. 2018). Respondent’s testimony indicates that he does not believe he and appellant
can amicably settle d isputes; when asked, “If you have a disagreement with [appellant,]
how is it resolved?” he answered, “It’s not.”
Minn. Stat. § 518.17, subd. 1(a)(12), requires the district court to consider parents’
“willingness and ability” to cooperate in the rearing of their child. The record reflects
respondent’s unwillingness to cooperate far more strongly than it reflects his ability to do
so, particularly in regard to maintaining a safe, healthy, and age -appropriate environment
for B.L.T. The determination of joint legal and joint physical custody on the basis of the
district court’s findings was an improper application of the law. See Pikula, 374 N.W.2d
at 710.
4. Child-Support Awards
The parties agree that the district court erred on both child -support awards. As to
respondent’s monthly obligation, the district court found in a guidelines worksheet attached
to the decree that respondent’s basic monthly support obligation is $472 and his monthly
child-care support obligation is $570, but concluded that the monthly total was $1,258.
The parties agree that the total obligation is actually $1,042 and that the matter should be
remanded to correct this mistake.
As to the award of back child support, the district court found that the amount owed
for August 31 to December 1, 2018, is $158 per month, or a total of $474. The parties

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agree that the guideline amount was $655 per month, or a total of $1,965. We agree that
this is a clerical error and remand it for correction.5
We affirm the parenting-time determination, reverse the determination of joint legal
and joint physical custody and remand for a grant of sole legal and sole physical custody
with appellant, and reverse the child-support orders and remand them for correction.
Affirmed in part, reversed in part, and remanded.

5 We do not find respondent’s assumption that the district court intended to depart from the
guideline amount but neglected to make the requisite findings and that we should remand
for those findings to be persuasive. The district court’s unexplained award is less than a
fourth of the guideline amount; it is not probable that this was a deliberate departure.