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This opinion will be unpublished and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
A20-0009

In re the Marriage of:

Kathryn Jo Shanley, petitioner,
Respondent,

vs.

Brian James Shanley,
Appellant,

County of Anoka,
Intervenor.

Filed November 16, 2020
Affirmed
Cochran, Judge

Anoka County District Court
File No. 02-FA-10-1514

Kathryn Jo Shanley, Fridley, Minnesota (pro se respondent)

Kristian L. Oyen, Savage, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Bratvold, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant-father appeals from the district court’s denial of his motion to modify
child custody based on endangerment of the children, arguing that the district court abused

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its discretion by denying his motion without an evidentiary hearing. Because father failed
to make a prima facie case for modification based on endangerment, we affirm.
FACTS
Appellant Brian Shanley (father) and re spondent Kathryn Sh anley (mother) were
married in March 2007 and ha d two children, a now-11-yea r-old son and 12-year-old
daughter. The parties divorced in December 2012. In the judgment and decree dissolving
the marriage, the district court granted moth er sole legal and phys ical custody of the
children. The district court granted father supervised parenting tim e with the children,
which was later modified to be held once a week for tw o hours at a facility called
FamilyWise.
In November 2019, father filed a motion to modify custody based on endangerment
of the children. He supported his motion with an affidavit alleging, in relevant part:
[O]n the last two parenting time sessions on December 13 and
20, 2018, [son] stated that I ha d abused him. I have never
abused my children, and because my parenting time is
supervised, a record is maintain ed for each visit. I believe
[mother] has been telling this to our children.
His affidavit also alleged that FamilyWise discontinued parenting-time sessions around the
same time “because they [had] provided the service for too long.” Father asked the district
court to grant him sole physical and legal cu stody of the children on this basis. He
requested that the district court hold an evidentiary hearing on his motion and that it order
the children to undergo a forensic psychological examination.
The district court denied fa ther’s motion without holding an evidentiary hearing. It
concluded that father was not entitled to an evidentiary hearing because he failed to make

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a prima facie case that the children were endange red in mother’s care. The district court
reasoned that father’s allegations did not show a significant change of circumstances and
that the children’s belief that father had previously abus ed them did not constitute
endangerment. The district court relied on this same reasoning in denying father’s request
to have the children examined by a forensic psychologist.
Father appeals.
D E C I S I O N
Father challenges the district court’s denial of his motion for custody modification
without an evidentiary hearing. He argues that the district court abused its discretion when
it concluded that he had failed to establish a prima facie case of endangerment and denied
his motion without an ev identiary hearing. We are not pe rsuaded that the district court
abused its discretion.
Modification of an existing custo dy order is permitted only in limited
circumstances. See Minn. Stat. § 518.18 (2018). Se ction 518.18(d)(iv) addresses
modification based on changed circumstance s involving child endangerment. This
provision requires a district court to retain an existing custody a rrangement unless “the
child’s present environment endangers the child’s physical or emotional health or impairs
the child’s emotional development and the ha rm likely to be caus ed by a change of
environment is outweighed by the advantage of a change to the child.” The party seeking
the modification based on endangerme nt bears the burden of proof. Crowley v. Meyer ,
897 N.W.2d 288, 293 (Minn. 2017).

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To establish a prima facie case for modification based on endangerment, the moving
party must allege that: “(1) the circumstances of the children or custodian have changed;
(2) modification would serve the children’s be st interests; (3) th e children’s present
environment endangers their physical health, emotional health, or emotional development;
and (4) the benefits of the change outweigh its detriments with respect to the children.” Id.
(citing Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008)). A district court is
not required to hold an evidentiary hearing on a motion for modification unless the moving
party makes a prima facie case for modification. Goldman, 748 N.W.2d at 284.
In determining whether a prima facie case is shown, the district court must accept
the allegations in the moving party’s affidavits as true. Boland v. Murtha, 800 N.W.2d 179,
183 (Minn. App. 2011). If the affidavits accompanying the motion for modification do not
allege facts sufficient to allow a court to make the required findings, the district court is
required to deny the motion and no evidentiary hearing is necessary. Englund v. Englund,
352 N.W.2d 800, 802 (M inn. App. 1984) (citing Nice-Peterson v. Nice-Peterson ,
310 N.W.2d 471, 472 (Minn. 1981)).
We review de novo whether the district c ourt properly treated the allegations in the
moving party’s affidavits as true. Boland, 800 N.W.2d at 185. But we review for an abuse
of discretion a district court’s determinat ion whether a prima facie case exists for
modification. Id.
We conclude that the district court did not abuse its discretion by determining that
father failed to make a prima facie showing of endangerment. We agree with the district
court that father’s affidavit did not allege sufficient facts to allow the district court to make

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the required findings on the third element of the prima facie case—that the children’s
physical or emotional health or emotional development is presently endangered in mother’s
care.1
Endangerment requires a showing of a “significant degree of danger.”
Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997) (quotation omitted). And,
normally, the custodial parent’s conduct must have “an actual adverse effect on the child.”
In re Weber , 653 N.W.2d 804, 811 (Minn. App. 2002 ). The only allega tions in father’s
affidavit supporting endangerment ar e that his son told him during two
supervised-parenting-time sessions that father had abused him in the past. Father’s
affidavit provides no detail about the alleged abuse. Father’s affidavit also does not explain
how his son’s belief about father’s past a buse has adversely affected either child’s
emotional health or otherwise means that the children are in danger while in mother’s care.
We agree with the district c ourt that father’s vague, limited allegation is insufficient to
demonstrate a “significant degree of danger” to the children and does not rise to the “level
of endangerment” required by the modification statute.

1 The district court also determined that father failed to show “that the children’s belief that
[father] abused them is a new belief,” sugges ting that father failed to make a prima facie
showing on the first element, a change in circumstances. The district court seems to be
referring to the 2012 judgment and decree di ssolving the marriage, in which the district
court noted that father used corporal punish ment on the children. But because father’s
affidavit does not specify whether son’s claims of abuse refer to those instances of corporal
punishment or some other incident, it is uncle ar whether the children’s claims are a “new
belief.” Based solely on the allegations in father’s affidavit, we cannot say that the alleged
claims are a continuation of pr evious circumstances. We th erefore affirm the district
court’s order only on the endangerment element.

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We are not persuaded otherwise by fathe r’s argument that mother has interfered
with the parent-child relationship and thereby endangered the ch ildren. In support of his
position, father cites Amarreh v. Amarreh, in which we recognized that “a sustained course
of conduct by one parent designed to diminish a child’s relationship with the other parent”
may constitute emotional endangerment. 918 N.W.2d 228, 231-32 (Minn. App. 2018)
(quotation omitted). We noted that allegations of interfere nce with the parent-child
relationship that are “substantial” may establish a prima facie case of endangerment. Id. at
232; see also Geibe, 571 N.W.2d at 780 (recognizing that “[ r]epeated, concrete efforts to
prevent” the children from contacting othe r family members may show endangerment
(emphasis added)).
While Amarreh establishes the general principle that substantial interference with
the parent-child relationship may constitute emotional endangerment, father’s reliance on
Amarreh is misplaced because the specific alle gations by father in this case differ
significantly from the allegations in Amarreh. In Amarreh, the father alleged that the
mother: (1) moved the children out of state without notifying him, (2) refused to allow him
to have contact with the children for eight months, (3) blocked his calls to the children and
forbade them from talking with him, and (4) told the children that the father was going to
have other children and forget about them. 918 N.W.2d at 231. Based on these allegations,
we concluded that the father in Amarreh made a prima facie showing of emotional
endangerment. Id. at 232-33. Here, in contrast, father alleges just two occasions, close in
time, in which his son commented that father had abused him in the past. Father contends
without support that mother is responsible for son’s belief. But father’s affidavit does not

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suggest that mother has engaged in a sustained course of conduct aimed at interfering with
his relationship with the children. 2 Father does not allege mo ther failed to bring the
children to any supervised-p arenting-time sessions. Nor does father allege that
FamilyWise ended the sessions for reasons relating to son’s comments about the alleged
abuse. Rather, father affirmatively ac knowledges in his affidavit that his
supervised-parenting-time sessions with FamilyWise ended because the facility decided it
had been providing “the service for too long.” And, father’s affidavit contains no allegation
that mother’s alleged conduct has adversely affected his rela tionship with his children.
Father’s limited allegations, taken as true, do not show th at mother has substantially
interfered with the parent-child relationship such that it would endanger the children’s
emotional health or development. Moreover, at the district court hearing, mother’s attorney
affirmatively indicated that mother wanted to explore other options for supervised
parenting time and believed that continued visitation with father would be in the children’s
best interests. The record supports the district court’s conclusion that father failed to make
a prima facie case for modification based on endangerment.
Father argues relatedly that the district court erred by denying his request to have
the children examined by a forensic psychologi st. The district court denied his request

2 During oral argument, father also argued that mother is interfering with the parent-child
relationship by trying to prevent father fro m expanding parenting time, and he suggested
that we look to other document s in the record to sh ow a sustained course of interference.
But father did not make this allegation in his affidavit, and he did not argue this theory of
endangerment before the district court. We do not address theories that were not presented
to and considered by the district court, Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988),
and so we decline to address this argument.

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because father failed to make a prima facie case for modifying cust ody. This was an
appropriate exercise of the district court’s di scretion. Because the district court did not
abuse its discretion by determining that fath er failed to make a prima facie case for
modification based on endangerment, it properly denied father’s request for an evidentiary
hearing and for a forensic examination of the children.
Affirmed.