of Appeals Office of Appellate Courts
A. Tschida, Minneapolis, Minnesota, for appellant.
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.
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.
district court's custody award was not an abuse of
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.
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).
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.
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
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.
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
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.
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
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.
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
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."
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"
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.
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
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
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
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. [§] 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 ...