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In re Thornton

Supreme Court of Minnesota

October 2, 2019

In re the Matter of: Matthew Lawson Thornton, Appellant,
Jessica Ortiz Bosquez, Respondent.

          Court of Appeals Office of Appellate Courts

          Rodd A. Tschida, Minneapolis, Minnesota, for appellant.

          Robert J. Lawton, Rogosheske Lawton, PC, Saint Paul, Minnesota; and Mary Catherine Lauhead, Law Offices of Mary Catherine Lauhead, Saint Paul, Minnesota, for respondent.

          Christopher W. Bowman, Yaeger & Jungbauer Barristers, PLC, Saint Paul, Minnesota; and Michael P. Boulette, Barnes & Thornburg, LLP, Minneapolis, Minnesota, for amicus curiae Minnesota State Bar Association.

          Katherine S. Barrett Wiik, Best & Flanagan LLP, Minneapolis, Minnesota; and Rana S. Alexander, Minneapolis, Minnesota, for amicus curiae Standpoint.

          Kristine Lizdas, Minneapolis, Minnesota, for amicus curiae Battered Women's Justice Project.

          Elizabeth J. Richards, Saint Paul, Minnesota, for amicus curiae Minnesota Coalition for Battered Women.


         1. The statutory rebuttable presumption against an award of joint custody when domestic violence has occurred between the parents, found in Minnesota Statutes section 518.17, subdivision 1(b)(9) (2018), applies only against a joint physical or joint legal custodial arrangement, and not against a particular party.

         2. The district court's custody award was not an abuse of discretion.


          CHUTICH, Justice.

         This appeal concerns a dispute over the custody of a 4-year-old girl and the proper application of a statutory rebuttable presumption against an award of joint custody in cases when domestic abuse has occurred between the parents. Soon after the child's first birthday in November 2015, appellant Matthew Lawson Thornton ("Thornton"), the child's father, sued the child's mother, respondent Jessica Bosquez ("Bosquez"), for sole physical and legal custody. After a two-day trial, the family court referee found that Bosquez had committed domestic abuse against Thornton but that the child's best interests required that the parents be awarded joint physical custody and equal parenting time. The referee further found that the statutory presumption against joint legal custody was not rebutted and awarded sole legal custody to Bosquez. The district court agreed and the court of appeals affirmed.

         Thornton now asks us to reverse the district court's order and award him sole legal and physical custody. He contends that the district court misapplied the rebuttable presumption against awarding joint custody when domestic violence has occurred between the parents. See Minn. Stat. § 518.17, subd. 1(b)(9) (2018). Thornton further challenges the district court's application of the statutory best-interests factors, asserting that the district court improperly considered the friendly-parent factor in its best-interests analysis. See Minn. Stat. § 518.17, subd. 1(a)(11) (2018).

         We conclude that the district court did not misapply the domestic-abuse presumption or the friendly-parent factor, and appropriately exercised its broad discretion in analyzing the best-interests factors. Accordingly, we affirm.


         Thornton and Bosquez first met when Thornton, an attorney, represented Bosquez in a personal injury matter. They became intimate sometime in 2010, after the attorney-client relationship ended. Until this lawsuit, the parties' on-again-off-again relationship was tumultuous, conflict-riven, and, as described by the referee, "toxic." After Bosquez became pregnant with the child in early 2014, she began living at Thornton's house. The parties never married, but they signed a Recognition of Parentage establishing Thornton as the child's father.

         Bosquez and the child continued to live with Thornton until November 2015, when Thornton sought an award of child custody and simultaneously petitioned for an ex parte order for protection on behalf of himself and the child. The district court granted a temporary, ex parte order for protection for Thornton and the child and ordered an evidentiary hearing. At the hearing, Bosquez stipulated to an order for protection for Thornton, without factual findings, and the district court dismissed the petition that sought protection for the child. The referee ordered temporary custody to Thornton subject to shared parenting time with Bosquez. The referee also appointed a guardian ad litem to provide final recommendations on physical custody, legal custody, and parenting time. Because Ramsey County follows a "one judicial officer per family" policy in family law matters, the same referee presided over the order for protection matters and the custody proceedings.

         The guardian ad litem recommended that the parties share joint physical custody, joint legal custody, and parenting time according to a court-ordered schedule. The guardian's findings and recommendations were based on court-ordered psychological evaluations, parenting assessments, chemical dependency assessments, home visits with the parties and the child, discussions with the child's daycare provider, discussions with the parties' mental health care providers, and two personal references for each parent. The guardian also reviewed court files, medical records, correspondence between the parties, social media posts, and audio recordings.

         At the 2-day bench trial in January 2017, Thornton testified and presented testimony from eight witnesses and over 90 exhibits. Bosquez's trial testimony was limited, but she rested her case on the reports of the guardian ad litem, her counsel's cross-examination of Thornton and his witnesses, and Thornton's documentary evidence.

         In May 2017, in a detailed 31-page order, the referee set forth his analysis of statutory factors relevant to the child's best interests and the custody determination. See generally Minn. Stat. § 518.17, subd. 1(a) (2018) (providing 12 factors to consider in a determination of custody). To support an award of joint physical custody and sole legal custody to Bosquez, the referee made the following findings.

         The referee found that the parties' relationship was "dysfunctional and unhealthy," with each alleging that the other has "serious behavioral problems." Thornton presented extensive testimony of Bosquez's physical abuse including photographs of "scratch marks and bruises on his shoulders and arms, a cut on his arm from a knife, and an obvious bruise on the back of his neck." Although the referee did not make any incident-specific findings of domestic abuse, he concluded that "[t]hese injuries occurred from numerous incidents over an extended period of time" and that Bosquez had committed domestic abuse under Minnesota Statutes section 518B.01, subdivision 2(a) (2018). The referee also found that Bosquez used threats of suicide, and one actual suicide attempt, to try to assert control over Thornton.

         In considering the "nature and context of the domestic abuse," as required by section 518.17, subdivision 1(b)(9), the referee also found that Thornton was emotionally abusive towards Bosquez. Thornton admitted to calling Bosquez "extremely vulgar and degrading names and insults." When Bosquez was pregnant, he frequently denied being the father of the child and accused Bosquez of infidelity. Thornton regularly called Bosquez names such as "whore" and "slut" and impugned her ability to be a good mother with derisive comments. On occasion, he used this language in the child's presence. The referee found that Bosquez testified credibly that this demeaning behavior was a "constant and daily occurrence."

         In addition, the referee found that Thornton engaged in "coercive control and manipulation" of Bosquez. For example, he secretly photographed pages from Bosquez's private diary and gathered information about her foster care background and the criminal history of her family members; Bosquez told the guardian ad litem that he used this information to threaten to take custody of the child. Thornton also secretly dumped out Bosquez's breastmilk on his unfounded suspicion that she was abusing alcohol. The referee concluded that Thornton's behavior did not amount to statutory domestic abuse, but he found that this behavior was "offensive and demeaning and contribute[d] to an unhealthy dynamic which is central to this case."

         Although Thornton was the victim of Bosquez's physical abuse, the referee specifically found that he retained the "vast majority of power" over Bosquez because of his education and profession, and the fact that when the couple lived together, they lived in Thornton's home. The referee expressed concerns that Thornton was on a "campaign to minimize the importance of [Bosquez's] role in the minor child's life," noting one mental health provider's conclusion that the relationship between Thornton and Bosquez was not salvageable because of Thornton's "observable contempt and resentment" towards Bosquez.

         Crucially, the referee found that the child had suffered no abuse and that, in fact, she thrived under the care of both parties. The referee found no incidents of physical abuse by Bosquez since the parties ended their relationship. Despite Thornton's strenuous assertions that Bosquez is not fit for parenting, the referee noted that every disinterested evaluator praised Bosquez's parenting abilities and commitment to the child's well-being. The referee further found that both parties are "loving parents who can and do provide for all the child's needs" and that the child was happy and healthy. Consequently, the referee concluded that the child's best interests required a healthy relationship with both of her parents.

         Because the referee found that Bosquez committed domestic abuse against Thornton, 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). The referee provided the following analysis of the presumption:

24. The Court has already made findings regarding the nature and context of the domestic violence in this case. Father, the victim of domestic violence, has superior power and control over Mother. Mother's abusive actions were in the context of how powerless she felt in the relationship. The actions are not acceptable and, if they continue, will be detrimental to the minor child. There is evidence that Mother has respected the order for protection. There is also evidence that what appeared to be Mother's obsession to maintain the relationship has ended. The Court will adopt [the parental evaluator]'s recommendations for both parties to engage in therapy to address the issues which impair their ability to effectively communicate with each other.
25. Under these circumstances, the Court finds that the presumption against joint legal custody is not overcome. As noted above, the Court is concerned that Father will use joint legal custody as a weapon. Father has engaged in coercive control and manipulation of Mother throughout their entire relationship. Despite being a victim of domestic abuse, he has maintained the power and control in the parties' relationship.
26. Joint physical custody, on the other hand, is defined as "the routine daily care and control and the residence of the child is structured between the parties." Minn. Stat. [ยง] 518.003, subd. 3(d). As noted above, the parties have been able to have a jointly structured parenting time arrangement which benefits the child by providing substantial time with each parent and if exchanges and communication is ...

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