Anoka County District Court File No. F1-94-50525
Considered and decided by Wright, Presiding Judge, Harten, Judge, and
The opinion of the court was delivered by: Harten, Judge
Appellant challenges the denial of her motion to modify custody of the parties' child. Because we see no abuse of discretion by the district court, we affirm.
Appellant Anna Rigstad and respondent Patrick Pellegrin are the parents of P.J.P., now age 10. Appellant has two other children; respondent has one other child. P.J.P. lived with appellant until he was six. After Hennepin County substantiated that P.J.P. had been abused by a friend of appellant, P.J.P. began living with respondent; appellant consented to this arrangement. But five months later, appellant moved for an order for protection because respondent had abused P.J.P. The parties disputed his custody; appellant was again awarded custody.
When P.J.P. was seven, appellant abused him, striking him and bruising his face, instructing him not to go to school, and leaving him home alone. P.J.P called respondent; the sheriff was notified and P.J.P. and appellant's other children were placed in foster care. P.J.P. lived for a couple of months with the paternal grandmother of one of appellant's other children. He was then returned to appellant, just after he turned eight. The next month, P.J.P. was hospitalized after having attempted suicide. He was diagnosed with anxiety disorder, abuse and neglect. Hospital personnel recommended that P.J.P. not be released to either parent, so he was returned to the paternal grandmother of his half-sibling.
An Anoka County family court evaluator, after investigating, recommended that respondent have custody of P.J.P. Appellant moved for custody modification and for an independent evaluation by a Hennepin County clinical psychologist to be done at appellant's expense. The court granted her motion and ordered the parties to cooperate with this evaluation. At the conclusion of his evaluation, the psychologist concurred with the Anoka County evaluator that respondent should have custody. On 12 April 2002, the district court adopted the recommendations of the evaluator and the clinical psychologist and awarded custody of P.J.P. to respondent.
The evidentiary hearing on appellant's motion to modify custody occurred on two days that were two months apart. During that two-month period, appellant petitioned for an order for protection in Anoka County. The district court found insufficient evidentiary support for granting the order, and the parties stipulated to dismissal of the petition. Appellant then petitioned for an order for protection in Hennepin County, based on the same facts that had been found inadequate in Anoka County. The district court granted an ex parte temporary order. Appellant then took P.J.P. out of school and enrolled him in another school. At the Hennepin County hearing on the OFP petition, the district court accused appellant of forum-shopping and said that further petitions for protection had to be made with the permission of the Anoka County judge who had handled the case.
Appellant then moved for a second order in Anoka County. On 30 October 2002, during a telephone conference, the judge denied the order, approved P.J.P.'s placement with respondent, and rebuked appellant's attorney for unprofessional conduct in petitioning for an OFP in one county immediately after having a petition denied in another county. Respondent took P.J.P. to live with appellant's grandmother until he could "figure out what was going on."
Two weeks later, on the second day of the hearing, 14 November 2002, appellant's counsel withdrew from representation. Appellant's grandmother, with whom P.J.P. was then living, testified. Following that hearing, the Anoka district court found that "the overzealous representation by [appellant's] former counsel has partly contributed to the minor child's instability" and that appellant had "failed to make the prima facie showing of endangerment necessary to a modification of custody"; the court awarded appellant extensive visitation while P.J.P. resided with appellant's grandmother. On 16 January 2003 the district court issued an order dismissing appellant's motion for change in custody, awarding respondent permanent physical custody, and stating that, at respondent's request, P.J.P. could reside with appellant's grandmother. Appellant, again represented by the attorney who withdrew, challenges this order, arguing that she did not have the burden of showing that P.J.P. was endangered, that the district court abused its discretion in setting appellant's visitation schedule and in permitting P.J.P to reside temporarily with appellant's grandmother, and that some of the district court's findings are clearly erroneous.*fn1