In re the Marriage of:

This opinion is nonprecedential except as provided by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
A20-0865

In re the Marriage of:

Michelle Lee Roberts n/k/a Michelle Lee Freitas, petitioner,
Appellant,

vs.

Todd Mykle Roberts,
Respondent,

County of Lyon,
Intervenor.

Filed April 5, 2021
Affirmed
Smith, Tracy M., Judge

Lyon County District Court
File No. 42-FA-12-348

Michelle Lee Freitas, Cottonwood, Minnesota (pro se appellant)

Todd Mykle Roberts, Marshall, Minnesota (pro se respondent)

Considered and decided by Ross, Presid ing Judge; Connolly , Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Michelle Lee Freitas appeals the district court’s order granting respondent
Todd Mykle Roberts’s motion to modify custody of their two minor children. The district

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court modified custody to give Roberts sole legal and sole physical custody of the children.
Freitas asserts four errors: (1) the order infr inges on her fundamental right to parent the
children, (2) the district court violated her ri ght to due process, (3) Roberts is statutorily
barred from obtaining custody of the children, and (4) the district court abused its discretion
in determining the best interests of the children. We affirm.
FACTS
Roberts and Freitas married in 1995. Th ey have four children—two emancipated
adults and the minor children at issue here, who were 13 and 11 years old at the time of the
modification of custody. Freitas and Roberts’ s marriage was dissolved in 2012, and the
judgment and decree (J&D) governing the disso lution provided for jo int legal and joint
physical custody of the children.
In 2014, two years after the J&D, Roberts moved to modify custody and parenting
time. The district court denied modificati on of custody but granted modification of
parenting time. As part of its order, the dist rict court divided parenting time based on an
alternating-week schedule, with one overnight visit allowed for the other parent during the
off week.1 Both parents failed to follow the order’s terms, and the district court held both
parents in constructive civil contempt of court.
In March 2019, Roberts was convicted of hiring or agreeing to hire a minor for
prostitution in violation of Minn. Stat. § 609.324, subd. 1(b)(3) (2018). The minor involved

1 The district court slightly modified th e 2014 parenting time order in 2016. The
modification changed the exchange day to Frid ay afternoon at the e nd of the school day
and eliminated mid-week parenting time.

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was not one of the parties’ children. As pa rt of his probationary sentence, Roberts is
prohibited from having any contact with mi nor females without the approval of his
supervising agent. This restriction includes the parties’ minor children, both of whom are
female. During Roberts’s parenting time, and w ith the approval of his supervising agent,
Roberts has been visiting the children in the evenings after work but not living in the same
home with them.
Freitas moved to modify cust ody in July 2019, asking that the district court grant
her sole legal and sole physi cal custody of the children beca use of Roberts’s conviction.
Roberts filed a responsive motion to modify custody, asking for sole legal and sole physical
custody of the children based on Freitas’s alleged abusive be havior towards the children.
The district court scheduled an evidentiary hearing on the motions for November 2019.
In November 2019, before the evidentiary hearing, Freitas had an altercation with
one of the children and stru ck the child across the face, causing bruising. Roberts
requested—and the district court granted—an order for protection (OFP) on behalf of the
children against Freitas. The OFP granted Ro berts temporary physic al custody of the
children and limited Freitas’s contact with the children pending the results of the motions
to modify custody.
The OFP remained in effect until November 22, 2020. During this time, the children
first resided with C.H., one of the couple’s emancipated children, before moving in with
their paternal grandparents, where they currently reside. Freitas and Roberts agree the
children need consistent therapy, but neither has ensured that the children regularly attend
therapy.

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Following a continuance, the district court held an evidentiary hearing in February
2020 on the motions to modify custody. Both parties were self-represented. At the hearing,
the district court heard testimony from Robert s and Freitas, C.H., the guardian ad litem
(GAL) assigned to the case, Fr eitas’s current husband, and two of Freitas’s friends—a
coworker and a friend from chur ch. The district court also received the GAL’s report
recommending that it was in the children’s best interests for Roberts to have sole legal and
physical custody of the childre n given the need for stability and the parents’ inability to
work together for the benefit of the children.
The district court granted Roberts’s motion, giving him sole legal and sole physical
custody of the children. The district court evaluated the statutory best-interest factors, see
Minn. Stat. § 518.17, subd. 1(a) (2020), and concluded that, while its “options in this case
[were] limited and undesirable,” it was the be st option available under the circumstances
and was in the best interests of the children.2 As part of the order, the district court found
that Freitas failed to rebut th e presumption that joint legal and joint physical custody was
not in the children’s best interests because of the domestic-abuse incident that led to the
OFP against her. See Minn. Stat. § 518.17, subd. 1(b)(9 ) (2020). The district court also
found that Roberts rebutted the presumption that Freitas is entitled to at least 25% of

2 The J&D stated that, in evaluating any prop osed modification of custody and parenting
time, “the court shall apply th e best interests standard unde r Minnesota Statutes section
518.17.” Minnesota Statut es section 518.18(d)(i) (2020) allo ws represented parties, with
court approval, to agree that the best-interes ts standard will apply to any future custody-
modification request, rather than the more stringent endangerment standard under Minn.
Stat. § 518.18(d)(iv) (2020).

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parenting time with the children. See Minn. Stat. § 518.175, subd, 1(g) (2020). In
scheduling Freitas’s parenting time, the distri ct court created a parenting schedule for
Freitas that includes three phases incrementa lly allowing Freitas more unsupervised time
with the children.
Freitas appeals.3
DECISION
We do not presume that the district court has erred; the party asserting error, has the
burden of showing it. Horodenski v. Lyndale Gr een Townhome Ass’n, Inc. , 804 N.W.2d
366, 372 (Minn. App. 2011) (citing Midway Ctr. Assocs. v. Midway Ctr., Inc., 237 N.W.2d
76, 78 (Minn. 1975)). Although Freitas is a pro se appellant, she “is still not relieved of the
burden of, at least, adequately communica ting to the court what it is [she] wants
accomplished and by whom.” Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 729 (Minn.
1987) (citation omitted). Freitas’s arguments ar e not entirely clear, but we discern four
alleged errors, which we address in turn.
I. Freitas forfeited her argument that the modification infringes on her
fundamental right to parent.

Freitas argues that the district court viol ated her fundamental right to parent the
children when it granted Roberts sole legal a nd sole physical custody. In particular, she
appears to argue that Minn. Stat. § 518.17, subd. 1(a), and Minn. Stat. § 518.18(d) are
unconstitutional because they infringe on her right to parent the children.

3 Roberts did not file a brief in this appeal, and we ordered that the appeal proceed under
Minn. R. Civ. App. P. 142.03.

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While Freitas is indeed correct that the right of a parent to make decisions for their
child in the face of government interference is a fundamental right protected by the federal
and Minnesota constitutions, see Myer v. Nebraska, 262 U.S. 390, 399-400, 43 S. Ct. 625,
626-27 (1923); SooHoo v. Johnson, 731 N.W.2d 815, 820 (Minn. 2007), we do not address
the merits of her argument for two reasons.
First, Freitas did not raise her constitutional argument before the district court and
it is thus forfeited. See Thiele v. Stich , 425 N.W.2d 580, 582 (Mi nn. 1988) (stating that
appellate courts generally only consider issues presented to, considered by, and decided by
the district court); In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981) (declining
to address a constitutional issue raised for the first time on the appeal from a termination
of parental rights). Freitas has not forfeited he r fundamental right to parent her children,
but she has forfeited her ability to argue that, in these proceedings, the district court
deprived her of that right. See Thiele, 425 N.W.2d at 582 (“Nor may a party obtain review
by raising the same general issue litigated below but under a different theory.”).
Second, to the extent that Fr eitas asserts a facial challe nge to the statutes, she did
not properly inform the attorney general of her intent to challenge the constitutionality of
the statutes. See Minn. R. Civ. App. P. 144 (requir ing appellants inform the attorney
general of constitutional challenges to statutes when the state is not a party to allow the
state to intervene in the case); Rutz v. Rutz , 644 N.W.2d 489, 494 (Minn. App. 2002)
(declining to address a facial constitutional challenge to several statutes because the mother
did not notify the attorney general or ra ise the issue in the district court), review denied
(Minn. July 16, 2002).

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Freitas’s first argument is therefore forfeited.
II. The district court did not violate Freitas’s right to due process.
Freitas presents four arguments alleging violations of her due-process rights.
First, Freitas challenges the district c ourt’s grant of Roberts’s request for a
continuance of the evidentiary hearing on her motion to modify custody. “Whether to grant
a continuance is a ruling within the trial c ourt’s discretion, which will not be reversed
absent a showing of a clear abuse of that discretion.” In re Welfare of J.A.S., 488 N.W.2d
332, 335 (Minn. App. 1992) (citation omitted), review denied (Minn. Oct. 20, 1992).
The granting of the continuance was not an abuse of discretion. The district court
had a duty to ensure fairness to Roberts as a pro se party by allowing him “reasonable
accommodation” provided there was no prejudice to the adverse party. Kasson State Bank
v. Haugen, 410 N.W.2d 392, 395 (M inn. App. 1987). Roberts requested the continuance
21 days before the original hearing date, expl aining that one of the key witnesses was in
treatment and could not be present on the sc heduled date. Granting Roberts’s request to
permit him to call a supporting witness was not unreasonable. And, even though the witness
did not end up testifying, Freitas does not explain how the delay prejudiced her.
Freitas cites Amarreh v. Amarreh, 918 N.W.2d 228 (Minn. App. 2018), as support
for her argument that the district court erred. But Amarreh did not involve the continuance
of an evidentiary hear ing on a motion to modify custod y—it involved the denial of an
evidentiary hearing entirely. Id. at 230, 232-33. Because this is an appeal of the district
court’s order after an evidentiary hearing, Amarreh does not apply.

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Second, Freitas argues that the district court erred by relying on the GAL’s allegedly
biased report. Freitas’s argument centers on th e facts that the GAL neither visited with
Freitas in her home nor observed the children with Freitas, and that the GAL in the custody
dispute was the same GAL a ssigned during the OFP proceedin g. Based on these facts,
Freitas argues that the GAL report is biased a nd “not aimed to protect the interests of the
children.” Freitas presents no legal authority for the proposition that the GAL’s report must
be disregarded as biased under these circumstances, see Grigsby v. Grigsby, 648 N.W.2d
716, 726 (Minn. App. 2002) (concluding that arguments submitted without legal authority
are forfeited), and, in any even t, we defer to a district court’s credibility determinations,
Pechovnik v. Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009). Here, it is clear that the
district court believed the GAL’s report to be credible, rather than biased.
Third, Freitas argues that the district court improperly admitted Roberts’s exhibits.
Freitas does not specify which exhibits the district court improperly admitted, rendering it
impossible for us to review her claim. Accord Kroning v. State Farm Auto Ins. Co. , 567
N.W.2d 42, 46 (Minn. 1997) (“Entitlement to a new trial on the grounds of improper
evidentiary rulings rests upon the complaini ng party’s ability to de monstrate prejudicial
error.” (quotation omitted)). As a result, her evidentiary argument fails.
Finally, Freitas repeats multip le times that th e children were “seized” from her
without due process in viola tion of the Fourth Amendment to the federal constitution.
Because Freitas presents this argument with no legal authority, it is forfeited. See Grigsby,
648 N.W.2d at 726.

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III. Roberts is not statutorily barred from obtaining custody of the children.
Freitas next argues that several statutes preclude Roberts from obtaining full legal
and physical custody of the children.
Freitas first cites Minn. Stat. § 631.52 (2020), arguing that it precludes Roberts from
obtaining custody of the children because of his conviction. Section 631.52 requires the
family court to remove a child from a parent’s custody if the parent is convicted of certain
crimes unless the court determines it is in th e child’s best interest to remain with the
convicted parent. Minn. Stat. § 631.52, subd. 1(a)(1). But section 631.52 does not apply to
this case. The statute applies only if the custodial parent is convicted of an enumerated
crime under the statute. Id. The crime of which Roberts was convicted—hiring or agreeing
to hire a minor for prostitution in violation of Minn. Stat. § 609.324, subd. 1(b)(3)—is not
one of the enumerated crimes. Id., subd. 2.
Freitas also cites Minn. Stat. § 244.057 (2020) and Minn. Stat . § 244.052 (2020),
arguing that these statutes prevent Roberts from obtaining custody because, Freitas alleges,
Roberts is required to register as a sex offender. But neither statute applies in this case.
Section 244.057 relates to the requirement th at an agency give a local child-protection
agency notice if a sex offender is living with minor children. Because Roberts is not living
with the children, this statute does not appl y. Section 244.052 relates to pre-release
procedures for imprisoned predatory offenders. Minn. Stat. § 244.052. Because Freitas did
not establish that Roberts is a predatory offender, see Minn. Stat. § 244.052, subd. 1(5)
(defining predatory offender), and because he is not imprisoned, this statute similarly does
not apply. Thus, each of Freitas’s statutory arguments fails.

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IV. The district court did not abuse its dis cretion in balancing the best-interests
factors.

Finally, Freitas challenges the district court’s balancing of the best-interests factors
under Minn. Stat. § 518.17. The district co urt has broad discretion to provide for the
custody of the parties’ children. See Thornton v. Bosquez , 933 N.W.2d 781, 790 (Minn.
2019) (“[A] district court need s great leeway in making a cu stody decision that serves a
child’s best interests, in light of each child’s unique family circumstance.”); Rutten v.
Rutten, 347 N.W.2d 47, 50 (Minn. 1984). As a result, we re view the district court’s
balancing of the children’s best-interests factors for an abuse of discretion. See Thornton,
933 N.W.2d at 794 (citation omitted). “The [district] court abuses its discretion by making
findings unsupported by the record or by improperly applying the law.” Sefkow v. Sefkow,
427 N.W.2d 203, 210 (Minn. 1988) (quotation omitted).
Freitas challenges the district court’s findi ngs regarding nine of the best-interests
factors. We address each in turn.
Child’s Physical, Emotional, Cultural, Spiritual, and Other Needs
Freitas argues that Roberts’s personal relationships and the “negativity of the family
environment” caused by continued court procee dings led to the children’s mental-health
needs. She challenges the district court’s finding that “[n]either parent has ensured that the
children attend therapy regularly.” This finding is supported by the record. The GAL report
states that one of the children’s therapy program ended “due to a lack of follow through by

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the family” and that “their program is voluntary and cannot be forced if the family is not
committed.”4
Any Special Medical, Mental Health, or Educational Needs
Freitas argues that she can better provide the resources and environment to work
through the children’s mental-health challenges than can Roberts. While the district court
does appear to fault Roberts specifically for his inability to insulate the children from his
and Freitas’s legal conflict, the district court does state that “[b]oth parents . . . are unable
and unwilling to insulate the ch ildren from parental conflict” and that “[t]his failure on
behalf of the parents has adversely affect ed the children’s mental health and the
parent/child relationship.” This finding is supported by the GAL report. It states that
“[b]oth parties appear more focused on their children’s relationships with the other parent
and ‘catching’ them in an act of contempt of court than they are on their own relationships
with the children.” The partie s’ focus on each other, the GAL concluded, comes at the
expense of the children’s mental-health needs.
The Preference of the Children
Freitas argues that the district court “over valu[ed] the children’s expressed
preferences from the Order of Protection heari ng” to live with Roberts. But the district

4 Freitas also argues that Roberts’s pendi ng domestic-abuse charges warrant reversal.
However, both of Roberts’s pe nding domestic abuse changes were filed on April 17,
2020—the same day that the district court granted him full legal and physical custody of
the children—and are outside the di strict court record on appeal. See Minn. R. Civ. App.
P. 110.01 (defining the record on appeal).

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court expressly stated that it gave “little weight” to that pr eference because of Roberts’s
alienation of the children from Freitas. Freitas therefore has not shown error.
Whether Domestic Abuse Has Occurred
Freitas argues that Roberts’s conviction fo r hiring or agreeing to hire a minor to
engage in prostitution meets the statutory definition of domestic abuse and so the district
court erred by only discussing the domestic abuse between her and one of the children.
Freitas’s argument misreads the statute. This fa ctor requires the district court to assess
“whether domestic abuse, as defined in section 518B.01 , has occurred in the parents’ or
either parent’s household or relationship.” Minn. Stat. § 51 8.17, subd. 1(a)(4) (emphasis
added). Section 518B.01 relates only to domestic abuse between members of “a family or
household member” as defined by the statute. Minn. Stat. § 518B.01, subd. 2(a) (2020).
Because Roberts’s conviction involved a nonfamily member, it does not meet the statutory
definition of domestic abuse a nd it was thus proper for the district court to disregard
Roberts’s conviction when evaluating this factor.
The Parents’ Physical, Mental, or Chemical Health Issues
Freitas argues that the district court should have given Roberts’s court-ordered sex
offender treatment more weight in determining the children’s best interests. The district
court did note that Roberts “is required to complete sex offender treatment.” But, because
“there is scant if any room for this court to question a district court’s balancing of the best-
interests considerations,” In re Welfare of C.F.N., 923 N.W.2d 325, 334 (Minn. App. 2018)
(quotation omitted), review denied (Minn. Mar. 19, 2019), Frei tas’s argument that we
should rebalance this factor in favor of awarding her custody is unpersuasive.

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The Willingness and Ability of Each Parent to Provide Ongoing Care
Freitas’s argument for this best -interests factor also urge s us to rebalance the best
interests of the children. She argues that she was “highly invo lved” in the raising of the
children and that she would provide a proper home, education, and therapy to the children
if granted custody. The district court ackno wledged that Freitas is well-intentioned but
determined that she is nonetheless unable to provide for the children. In its order it found
that “[b]oth parents are willing to provide ongoing care for th e children and to meet their
needs. Neither parent is particularly capabl e of providing that care.” The district court
based this finding in part on Freitas’s inability to “comply with Court Orders regarding
parenting time.”
The district court’s finding is supported by the record. The GAL report states that
both parents “continue to subject the children to adult conflict” and, unless the parents
recognize how they are “contributing to their children’s deteriorating mental health and
self-harm, the children will co ntinue to be in an unhealthy living environment in both
homes.” Further, the record sh ows that, after Freitas willfu lly violated a 2016 order
modifying parenting time, the district court held her in constructive contempt of court.
Effect of the Custody Arrangement on the Parents’ Relationship with the
Children

Freitas’s argument on this factor primarily challenges the OFP. While the OFP does
limit Freitas’s parenting time with the children, the merits of the OFP are not before us in
this appeal. Freitas does argue that the distri ct court should have used the language in the
OFP stating that, if the district court’s custody order conflicted with the OFP, the custody

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order supersedes the OFP. But that OFP language did not require the district court to reach
a different result regarding custody. Again, we will not rebalance the best-interest factors
leading to the district court’s custody decision. See C.F.N., 923 N.W.2d at 334.
Ability to Foster the Children’s Relationship with the Other Parent
Here, too, Freitas asks us to reba lance the best-interests factors. See id. She states
that Roberts has done nothing to encourage her relationship with the children. The district
court’s order essentially agrees with this stat ement, but it also finds that Freitas actively
discouraged the children’s relationship with Roberts. We discern no abuse of discretion.
The Willingness to Cooperate in the Rearing of the Children
Finally, Freitas argues that Roberts’s in ability to inform he r of the children’s
appointments, address changes, and other general updates about the children’s lives
supports granting her sole lega l and physical custody. Freita s also argues that Roberts
intentionally alienated her from the children and th at that is a basis to grant her sole legal
and physical custody.
In its order, the district court recognized both parties’ inability to communicate with
each other, stating that they “are entirely incapable of working together to resolve disputes
regarding any major decisions regarding the ch ildren.” This finding is supported by the
record. Roberts admitted at the evidentiary hearing that he fa iled to inform Freitas of the
children’s change of address and did not communicate doctor or therapy appointments with
Freitas. And the GAL report also states that Freitas said “it is not possible to co-parent with
Mr. Roberts” while Roberts said that Freitas is “manipulative and controlling.”

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But Freitas argues that the finding regarding Roberts’s inability to cooperate means
that she must be granted custody. Freitas relies on two cases to support her argument.
Neither is persuasive. In the first, Lemcke v. Lemcke, we stated that “a sustained course of
conduct by one parent designed to diminish a child’s relationship with the other parent is
unacceptable and may be grounds for denying or modify ing custody.” 623 N.W.2d 916,
919 (Minn. App. 2001) (emphasis added), review denied (Minn. June 19, 2001). But we
cautioned that parental alienation does not automatically preclude granting custody to the
parent responsible for the alienation because “the paramount consideration in any custody
decision is the best interests of the child.” Id. at 920. We then affirmed the grant of custody
to the parent allegedly resp onsible for the alienation. Id. at 922. Here, the district court
engaged in a best-interests an alysis and determined, like in Lemcke, that the parent
allegedly responsible for the alienation should still be awarded custody of the children. Id.
The second case that Freitas cites is Henrikson v. Henrikson , 179 N.W.2d 284
(Minn. 1970). There, the supreme court affi rmed the district court’s order modifying
custody based on “[mother’s] course of conduct, mainly [her] interference with [father’s]
right of communication and visitation with his sons.” Id. at 285. Freitas is correct that this
case suggests that interference with visitation rights (or what are now called parenting time
rights) and parental alienation can lead to a change in custody. But, in Henrikson, the
supreme court affirmed the district court’s modification-of-custody order as within the
district court’s discretion. Id. Here, Freitas is arguing that we should reverse the district
court’s order. We disagree that Henrikson compels the conclusion that the district court
abused its discretion here.

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In sum, the district court did not abuse its discretion by modifying custody to grant
full legal and physical custody of the children to Roberts based on the best interests of the
children.
Affirmed.