Jamison John Stewart, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0754

Jamison John Stewart,
Respondent,

vs.

John Doe,
Respondent,

vs.

Hoda Ahmed Sulub,
Appellant,
Malko Ibrahim, et al.,
Third-Party Intervenors.

Filed March 1, 2021
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Ramsey County District Court
File No. 62-FA-19-1812

Jamison Stewart, St. Paul, Minnesota (pro se respondent)

Calandra Revering, Rosalind Sullivan, Robbinsdale, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and
Halbrooks, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
REYES, Judge
Appellant argues on appeal that the district court (1) abused its discretion by
dismissing her third-party custody petition for lack of standing; (2) erred by failing to hold
an evidentiary hearing on her petition ; ( 3) abused its discretion by failing to dismiss
respondent’s competing third-party custody petition ; and (4) erred by granting
respondent’s petition without holding an evidentiary hearing. We affirm on the first three
issues, and reverse and remand on the fourth issue.
FACTS
This case arises from two competing third -party custody petitions. The child at
issue is A.J., the 11 -year-old daughter of Kalgailal Jabril (mother) and John Doe ( father).
Mother and father met and dated in Canada but never married. While pregnant with A.J.,
mother moved to Minnesota, where A.J. was born in August 2008. Father is not on A.J.’s
birth certificate. While in Minnesota, mother lived with appellant Hoda Ahmed Sulub,
who is mother’s first cousin, for approximately four months. In late 2008, mother and A.J.
moved to Grand Forks, N orth Dakota . There, m other met respondent Jamison John
Stewart, and the two lived togeth er beginning in December 2008. Mother and Stewart
together moved first to Bismarck, North Dakota, in 2009 and then to St. Paul, Minnesota,
in 2011. The two married in December 2012. Stewart helped take care of A.J. throughout
this time.
Mother and Stewart separated in 2014, when mother moved to South Dakota for
approximately six months, leaving A.J. with Stewart. When mother returned to Minnesota,

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she and Stewart remained separated. Nevertheless, A.J. continued to spend some weekends
and overnights with Stewart. Mother and Stewart divorced in May 2019, yet remained
friends, and Stewart continued to co-parent A.J. Between 2014 and 2019, mother had three
additional children with two other men.
Around September 1, 2019, mother and her youngest child died in a car accident.
After mother’s funeral, A.J. stayed with some of mother’s relatives for several days.
Stewart thought mother’s relatives would return A.J. after the youngest child’s funeral, but
they did not attend the funeral. Stewart could not get in contact with A.J., so he filed an
emergency ex parte mot ion requesting custody of A.J. The district court awarded him
temporary sole legal custody and temporary sole physical custody of A.J.
Stewart also filed a third-party custody petition seeking permanent custody of A.J.
Sulub, along with mother’s sister, Samira Jabril, and mother’s half -sister, Malko Ibrahim
(collectively, intervenors) together filed a competing third-party custody petition. Stewart
moved to dismiss intervenors’ petition. After obtaining new counsel, intervenors filed an
amended third-party custody petition (amended petition) and moved to dismiss Stewart’s
petition under Minn. Stat. § 257C.03, subd. 8 (2018). Stewart moved to dismiss
intervenors’ amended petition, also under Minn. Stat. § 257C.03, subd. 8.
The district court held a nonevidentiary motion hearing on February 5, 2020. In the
resulting order, i t found that intervenors failed to allege facts showing that they had a
substantial relationship with A.J. and dismissed their amended petition with prejudice. The
district court denied intervenors’ motion to dismiss Stewart’s petition. Finally, it granted
Stewart’s petition, giving him permanent sole legal custody and sole physical custody of

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A.J. In doing so, the district court found that Stewart established a substantial relationship
with A.J. and that granting Stewart custody is in the best interests of the child. This appeal
follows.1
DECISION
I. Legal Background
Minnesota law provides two pathways for a nonparent to obtain custody of a child:
a de facto custodian pr oceeding or a n interested third-party child -custody proceeding.
Minn. Stat. § 257C.03, subd. 1(a) (2018). For both pathways, a nonparent must first file a
petition for custody that responds t o 15 requirements . Minn. Stat. § 257C.03, subd. 2
(2018). Because the statute is written in the conjunctive, the failure to adequately address
any one of the requirements can be fatal to the petition. Id.; see State v. Nelson, 842 N.W.2d
433, 440 (Minn. 2014) (stating “and” is usually conjunctive). Of particular interest here is
the requirement that the petitioner allege a basis for jurisdiction under Minn. Stat.
§ 257C.01, subd. 3 (2018) (addressing interested third-party custody), which requires the
petitioner to “prove that at least one of the factors in section 257C.03, subdivision 7,
paragraph (a), is met.” Id., subd. 2(a)(5) (emphasis added).2 Minn. Stat. § 257C.03, subd.
7(a), in turn requires the petitioner to establish: (1) one of three child-endangerment factors
by clear and convincing evidence ; (2) that placement with the petitioner is in the best

1 Stewart did not file a brief or otherwise oppose this appeal. This court ordered the appeal
to proceed under Minn. R. Civ. App. P. 142.03 (providing that if a respondent fails to file
a brief, the case shall be determined on the merits). Additionally, S ulub is the only
intervenor to appeal the district court’s decision.
2 Nonparents seeking custody as de facto custodians must allege jurisdiction under Minn.
Stat. § 257C.01, subd. 2 (2018).

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interests of the child by a preponderance of the evidence ; and (3) that petitioner has not
been convicted of a crime listed in Minn. Stat. § 518.179 (2018)3 by clear and convincing
evidence (collectively, subdivision 7(a) requirements). Minn. Stat. § 257C.03, subd. 7(a)
(2018); Lewis-Miller v. Ross, 710 N.W.2d 565, 568 (Minn. 2006) (Lewis-Miller II).4 The
three child-endangerment factors are that:
(i) the parent has abandoned, neglected, or otherwise
exhibited disregard for the child’s well -being to the
extent that the child will be harmed by living with the
parent;

(ii) placement of the child with the individual takes priority
over preserving the day-to-day parent-child relationship
because of the presence of physical or emotional danger
to the child, or both; or

(iii) other extraordinary circumstances [exist].

Minn. Stat. § 257C.03, subd. 7(a) (1). Section 257C.01, subd ivision 3, states that an
interested third-party petitioner must prove “at least one of the factors” in subdivision 7(a)
must be met. (Emphasis added.) We therefore interpret it to require that at least one child-
endangerment factor must be met, in addition to the other subdivision 7(a) requirements ,
in order to meet the jurisdictional requirement of section 257C.03, subdivision 2(a)(5). Id.
§ 257C.01, subd. 3; see also Lewis-Miller II, 710 N.W.2d at 568 -69 (listing then-existing

3 A petitioner who is convicted of a crime listed in section 518.179 may nevertheless gain
custody of a child by meeting certain requirements. Id., subd. 1. Neither party in this case
is a convicted person under section 518.179.
4 At the time of the Lewis-Miller II decision, the third subdivision 7(a) requirement did not
exist. See 2002 Minn. Laws ch. 304, § 3, at 433.

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grounds for dismissing third-party custody petitions) (citing Minn. Stat. § 257C.03, subd.
8(a) (2004)).
Because b oth parties in this case based their petitions on the third child -
endangerment factor, “other extraordinary circumstances ,” we must first interpret that
term. We review the interpretation of statutory language de novo. In re Dakota County ,
866 N.W.2d 905, 909 (Minn. 2015). We first determine whether the statute’s language is
ambiguous. Id. A statute is ambiguous if it is subject to multiple reasonable
interpretations. Id. If it is unambiguous, we apply its plain meaning. Id.
The parties do not argue that the term “ other extraordinary circumstances” is
ambiguous, and though the term is broad, we discern no ambiguity. Neither chapter 257C
nor caselaw define extraordinary circumstances . When a statute does not define a term,
we look to the common dictionary definition. Jaeger v. Palladium Holdings, LLC , 884
N.W.2d 601, 605 (Minn. 2016). “Extraordinary” is defined as “going beyond what is usual,
regular, or customary” or “exceptional to a very marked extent.” Merriam-Webster
Dictionary 444 (11th ed. 2014). We have described extraordinary circumstances as those
“of a grave and weighty nature.” In re Custody of A.L.R. , 830 N.W.2d 163, 170 (Minn.
App. 2013).
Caselaw also requires a petitioner seeking third -party custody based on
extraordinary circumstances to show that the petitioner has a “substantial relationship” with
the child. In re Kayachith, 683 N.W.2d 325, 327 (Minn. App. 2004), review denied (Minn.
Sept. 29, 2004). Caselaw does not define “substantial relationship” but the Merriam-
Webster Dictionary defines it as “important” or “essential.” Merriam-Webster Dictionary

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at 1245. The Kayachith court contrasted a “substantial relationship” with a “nonexistent
or only nominal” or “limited” one and stated that the “substantial relationship” must stem
from interactions before the biological parent’s death and the third party’s petition. 683
N.W.2d at 328. In sum, as part of the jurisdictional allegation under Minn. Stat. § 257C.03,
subd. 2(a)(5), a petitioner basing a third-party custody petition on other extraordinary
circumstances must also allege a substantial relationship with the child in ord er to prevail
on the petition. Failure to do so warrants dismissal. Minn. Stat. § 257C.03, subd. 8(a)(2);
Kayachith, 683 N.W.2d at 328 (dismissing third -party petition for failure to allege a
substantial relationship).
Establishing custody as a third party proceeds in two stages. Lewis-Miller II, 710
N.W.2d at 569 -70. At the f irst stage, the petitioner must submit a valid petition and
supporting affidavits alleging facts that meet the statutory requirements which, if t rue,
would make a prima facie case for third -party custody. Id. Second, if the district court
finds that the petitioner has made a prima facie case for custody modification , then the
petitioner is entitled to an evidentiary hearing on the petition. Id. Whether the assertions
in the petition “are actually true is to be resolved at the subsequent hearing.” Lewis-Miller
v. Ross, 699 N.W.2d 9, 14 (Minn. App. 2005), aff’d, 710 N.W.2d 565 (Minn. 2006) (Lewis-
Miller I); see also Lewis-Miller II, 710 N.W.2d at 569 (stating that petitioner must satisfy
evidentiary burdens for each subdivision 7(a) requirement at evidentiary hearing).
II. Standard of Review

Caselaw is not clear as to our standard of review for interested third-party custody
proceedings. Because t he two -stage process for these proceedings is similar to the

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procedure in custody-modification proceedings, we look to that caselaw for our standard
of review. See Lewis-Miller II, 710 N.W.2d at 569 (applying a two -stage procedure for
third-party custody proceedings similar to custody-modification procedure) (citing Nice-
Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (requiring district court to
deny motion for custody -modification and evi dentiary hearing unless affidavits allege
sufficient facts that, if true, would justify modification)).
In Boland v. Murtha, we set out the analytical framework , involving three distinct
steps, for our review of district court determinations on custody-modification petitions.
800 N.W.2d 179, 182-85 (Minn. App. 2011). We first “review de novo whether the district
court properly treated the allegations in the moving party’s affidavits as true, disregarded
the contrary allegations in the nonmoving party’s affidavits, and considered only the
explanatory allegations in the nonmoving party’s affidavits.” Id. at 185 . Explanatory
allegations are those that “explain or contextualize” but do not contradict the petitioner’s
allegations. Id. at 183. The parties’ affidavits include not only affidavits of “the parties
themselves, but to all affidavits submitted . . . in support of or in opposition to a motion. ”
Id. at 183, n.2. “Second, w e review for an abuse of discretion the district court’s
determination as to the existence of a prima facie case for the modification . . . .” Id. at
185. Third, “we review de novo whether the district court properly determined the need
for an evidentiary hearing.” Id.

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III. The district court did not abuse its discretion by dismissing Sulub’s third-party
custody petition because Sulub failed to allege a prima facie case for custody.

Sulub argues that the district court erred by dismissing her petition because the facts
in her petition allege a substantial relationship with A.J. We disagree.
Here, our de novo review of the record reveals that, with one exception,5 the district
court properly assumed Sulub’s allegations were true . For example, the district court
acknowledged Sulub’s allegations that she has maintained a relationship with A.J. and that
she participated in A.J.’s life events.
We next consider whether the district court abused its discretion by determining that
Sulub failed to allege a substantial relationship with A.J . Sulub’s affidavits and o ther
submissions primarily detail her relationship with mother, her interpretation of mother’s
desires, her allegations about Stewart’s unfitness, and her concerns about Stewart’s
unfamiliarity with A.J.’s alleged cultural background. However, the critical issue is
Sulub’s relationship with A.J. On that issue, Sulub submitted that mother and A.J. lived
with her for the first four months of A.J.’s life and that she participated in A.J.’s major life
events throughout A.J.’s life . But sporadic in volvement does not create a substantial
relationship. Kayachith, 683 N.W.2d at 328 (stating that limited interaction is insufficient
to create substantial relationship). Sulub generally alleges having a relationship with A.J.,

5 The district court found that photos of intervenors with A.J. were taken after mother’s
funeral. Sulub stated that these photos were not taken af ter mother’s funeral, but did not
indicate when they were taken. Though the district court erred by failing to assume as true
Sulub’s statement, the error is harmless because the photos do not overcome the
insufficiency of Sulub’s allegations to make a prima facie case for third-party custody. See
Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

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which she says she maintains through phone calls, social media, special events, and family
gatherings, but she did not allege when, how often, or how extensively those contacts
occur. Sulub submitted several photos of A.J. with mother’s relatives. However, the
photos do not all include Sulub, and it is unclear when the photos were taken. Sulub also
asserts that A.J. wore traditional Somali clothes and participated in cultural traditions with
mother’s relatives. But A.J.’s alleged participation in cultural traditions does not create a
substantial relationship with Sulub. On this record, Sulub has not shown that t he district
court abused its discretion by concluding that her relationship with A.J. is limited rather
than substantial.
Sulub emphasizes that Stewart brought A.J. to mother’s relatives soon after mother
died and that these relatives cared for A.J. for several days. But these interactions occurred
after mother’s death, so the district court properly did not consider them in determining
whether a substantial relationship exists. Kayachith, 683 N.W.2d at 328. In sum, because
Sulub’s allegations do not meet the substantial -relationship requirement, the district court
did not err by dismissing her petition for lack of standing.
IV. The district court did not err by denying Sulub’s request for an evidentiary
hearing.

Sulub argues that the district court should have held an evidentiary hearing on her
petition. We disagree. Sulub is entitled to an evide ntiary hearing only if she alleges a
prima facie case for third -party custody, which is not the case here . Lewis-Miller II, 710
N.W.2d at 568-69. We therefore conclude that the district court did not err by not holding
an evidentiary hearing on her petition.

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V. The district court did not abuse its discretion by determining that Stewart
alleged a prima facie case for third-party custody.

Sulub argues that the district court erred by granting Stewart’s petition because it
ignored evidence that she submitted showing that Stewart failed to establish a substantial
relationship with A.J. and that placing A.J. with Stewart is not in A.J.’s best interest. We
disagree.
We apply the same three -part standard of review to Stewart’s petition as we did to
Sulub’s. Here, our de novo review of the record shows the district court properly credited
Stewart’s allegations and disregarded Sulub’s contrary allegations.6
Stewart alleges interested-third-party status based on extraordinary circumstances.
He alleges that he has a subs tantial relationship with A.J. His petition and supporting
affidavits allege that he consistently participated in A.J.’s upbringing and care; that A.J.
calls him “dad”; that A.J. spends significant time with him despite his separation f rom
mother; and that he continues to provide a room, transportation, and care for A.J. as if she
were his own child. Stewart’s relationship with A.J. predates mother’s death and his
petition, and their relationship is not “nominal,” “nonexistent,” or “lim ited.” Kayachith,
683 N.W.2d at 328 (requiring a substanti al, pre-existing relationship). The district court
did not abuse its discretion by determining that Stewart alleged a substantial relationship
with A.J.

6 The record is unclear whether the district court considered all of Sulub’s explanatory
allegations. Under Boland, whether to do so is discretionar y, and we discern no abuse of
discretion in its analysis here. 800 N.W.2d at 186 (stating that the district court may
consider explanatory statements in opposing affidavits).

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However, a substantial relationship alone does not constitute ext raordinary
circumstances. See Kayachith, 683 N.W.2d at 327 (requiring petitioner to, at minimum,
show a substantial relationship to establish extraordinary circumstances). We note that the
district court did not explicitly find extraordinary circumstances. Nevertheless, it implicitly
found extraordinary circumstances when it noted that mother and mother’s youngest child
died in a tragic car accident, noted that father is unknown and had almost no involvement
with A.J., and explicitly found that Stewart has a substantial relationship with A.J. See
Prahl v. Prahl , 627 N.W.2d 698, 703 (Minn. App. 2001) ( stating that “[w] e may treat
statutory factors as addressed when they are implicit in the findings”).
Stewart also makes allegations on each best -interests factor under Minn. Stat.
§ 257C.04 (2018) and supports them with his affidavit. Affidavits from the fathers of
mother’s other children as well as Stewart’s mother support Stewart’s best-interests
allegations. Sulub points to no deficiency in Stewart’s best-interests allegations. Instead,
she points to areas where her allegations and Stewart’s allegations conflict or where she
alleges Stewart is untruthful. Specifically, she argues that Stewart was never A.J.’s primary
caregiver, Stewart’s home is not stable or safe d ue to robberies occurring there, Stewart
has an extensive criminal history as well as mental-health and drug-use issues, and Stewart
cannot provide for the child because he is unemployed. But, like the district court, we must
assume Stewart’s allegations to the contrary are true, including that he w as a primary
caregiver for A.J., his home is stable and safe, his criminal acts are largely in the past , his
mental-health and medical-marijuana use does not affect his ability to parent, and he can
provide financially for the child. Sulub’s allegations that contradict Stewart’s are more

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appropriate for the evidentiary hearing. Griese v. Kamp , 666 N.W.2d 404, 409 (Minn.
App. 2003) (holding that conflicting affidavits demonstrate need for evidentiary hearing) ,
review denied (Minn. Sept. 24, 2003). To the extent that Sulub’s allegations provide
context for Stewart’s petition, they do not demonstrate that the district court abused its
discretion by dete rmining Stewart’s petition adequately alleged that it was in A.J.’s best
interests to be placed with him.
In sum, w e conclude that the district court did not abuse its discretion by
determining that Stewart alleged a prima facie case for custody as an interested third party.
We therefore conclude that the district court did not err by denying Sulub’s motion to
dismiss Stewart’s petition.
VI. The district court erred by failing to hold an evidentiary hearing prior to
granting Stewart’s petition.

Sulub argues that the district court erred by granting Stewart’s petition without
holding an evidentiary hearing. We agree.
After finding that Stewart alleged a prima facie case for third -party custody, the
district court should have held an evidentiary hearing. Lewis-Miller II, 710 N.W.2d at 568-
69. We therefore reverse the district court’s grant of Stewart’s petition and remand for an
evidentiary hearing to determine Stewart’s petition.
Affirmed in part, reversed in part, and remanded.