STATE OF MINNESOTA
IN COURT OF APPEALS
C0-00-1170
In Re the Marriage of:
Michael J. Lemcke, petitioner,
Respondent,
vs.
Dayna P. Lemcke,
Appellant.
Filed April 3, 2001
Affirmed
Lansing, Judge
Chippewa County District Court
File No. FX99306
J. Richard Stermer, Prindle, Maland, Sellner, Stennes & Knutsen, Ch., 102 Parkway Drive,
Montevideo, MN 56265-0591 (for respondent)
William E. Mullin, Melissa M. Weldon, Maslon, Edelman, Borman & Brand, LLP, 3300 Wells
Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-4140 (for appellant)
Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.
S Y L L A B U S
A sustained course of conduct by one parent designed to diminish a child's relationship with the
other parent is a factor that weighs heavily against the offending parent in a custody determination.
But a finding that a parent initially attempted to alienate a child from the other parent does not,
without more, preclude the offending parent as a matter of law from receiving sole physical
custody.
O P I N I O N
LANSING, Judge
Dayna Lemcke appeals from a dissolution judgment providing that Michael Lemcke have sole
physical custody of Dylan, the Lemckes' four-year-old son. Dayna Lemcke claims that, as a matter
of law, the district court abused its discretion in allowing Michael Lemcke to have sole physical
custody notwithstanding its finding that he had initially attempted to alienate Dylan from her and her
extended family. Because in determining that Michael Lemcke would have sole physical custody
the district court properly weighed all the relevant statutory factors, including Michael Lemcke's
attempt to alienate Dylan from his mother, we affirm.
FACTS
Dayna Lemcke and Michael Lemcke were married in 1985. Their son Dylan was born in February
1996. When the Lemckes separated in June 1999, Dayna Lemcke moved out of the home and
agreed to leave Dylan with his father. The Lemckes worked out an interim shared-custody
arrangement whereby Dylan spent alternating weeks with each parent. Kelly Lemcke, Michael
Lemcke's daughter from a previous marriage, and Jacie Foss, Dayna Lemcke's niece, also stayed
with Michael Lemcke. Kelly and Jacie, now 18 and 17 years old respectively, lived with the
Lemckes throughout their 14-year marriage.
After the Lemckes separated, Michael Lemcke told Kelly and Jacie that Dayna Lemcke did not
want to be married to him anymore. He also stated that Dayna Lemcke wanted the party life and
would not be able to provide the structure and stability the girls needed. In Dylan's presence,
Michael Lemcke said Dylan would not get the attention he needed if he lived with his mother. Also
in Dylan's presence, Michael Lemcke talked to Dylan's daycare provider about the Lemckes'
marital problems. But the daycare provider testified she could not recall Michael Lemcke making
any negative or derogatory comments about Dayna Lemcke. She also stated she had not seen
Michael Lemcke interfere with Dylan's relationship with his mother.
The breakup of the family was difficult for Dylan and the girls. Dayna Lemcke testified that after the
Lemckes separated, Dylan became estranged and had difficulty showing affection for her in his
father's presence. She also testified that Dylan had stated he did not like her, Jacie, or his maternal
grandmother. Dylan claimed that his father and Kelly had told him to feel that way. Dayna Lemcke
added that Michael Lemcke had been rigid about Dylan's schedule and had twice refused to let
Dylan stay with her when he was unable to care for him, opting instead to leave him with a
babysitter. Michael Lemcke denied trying to alienate Dylan from his mother and her family and
noted that Dylan had expressed negative feelings about them before the separation too. Both
parents noted that Dylan was now doing better and was adjusting to his new circumstances.
The court-ordered custody evaluation resulted in a recommendation that the Lemckes share legal
custody of Dylan and that Michael Lemcke receive sole physical custody. The evaluator based her
recommendation on a finding that although both parents loved Dylan and were capable of providing
the care he needed, Michael Lemcke had a uniquely intimate bond with the child and appeared to
be more settled and more focused on Dylan's need for stability. The evaluator found that Dylan
would be negatively affected if the bond with his father were disrupted. In arriving at her
recommendation, she relied on interviews with both parents and on outside references. The father's
13 references were positive. Of the mother's five references, two were positive, two opted not to
fill out the evaluator's questionnaire, and one noted that Michael Lemcke was better suited to be
Dylan's primary caregiver. Because of Dylan's young age, the evaluator did not consider his wish to
continue living with his father.
A psychologist Dayna Lemcke hired to evaluate Dylan concluded that Dylan loved both parents
and was equally bonded to them. He also concluded that both parents loved Dylan and were likely
to do whatever was necessary to encourage each other's relationship with him. In response to
Dayna Lemcke's claim that Dylan did not seem happy to see her when his father was around, the
psychologist offered a number of plausible explanations, none of which included the father's alleged
efforts to alienate Dylan's affection for his mother. He suggested, for example, that Dylan might be
unhappy about having to end an enjoyable activity because of the custody exchange. Michael
Lemcke did not participate in the evaluation because he was not told about it.
After weighing the evidence in light of the relevant statutory factors, the district court placed sole
physical custody with Michael Lemcke. The court premised its decision primarily on a finding that
Dylan had a uniquely close emotional relationship with his father and that upsetting that relationship
would be detrimental to him. The court also found that although Michael Lemcke had initially tried
to alienate Dylan's affection from his mother and her family, he now appeared able to put aside his
anger and encourage a positive relationship between Dylan and his mother.
Dayna Lemcke moved for amended or more particularized findings and, alternatively, for a new
trial. The court amended its findings, but it denied Dayna Lemcke's new-trial motion. In its
amended findings, the court clarified that in finding that Dylan was more bonded with his father, it
had relied on the custody evaluator's testimony, which was corroborated by Dylan's godmother
and his daycare provider. Both testified that Dylan and Michael Lemcke shared a positive bond
and that Dylan would be more comfortable with his father. The court also noted that its finding that
Michael Lemcke was now able to encourage a healthy relationship between Dylan and his mother
was based on Michael Lemcke's behavior, his recognition that any interference with Dylan's
relationship with his mother would negatively impact Dylan, and his willingness to share custody
during the pendency of these proceedings.
This appeal followed the court's amended findings and its denial of Dayna Lemcke's new-trial
motion.
ISSUE
Does the district court's finding that Michael Lemcke initially attempted to alienate Dylan's affection
from his mother and her extended family preclude Michael Lemcke's sole physical custody of
Dylan as a matter of law?
ANALYSIS
The district court has broad discretion in determining custody. Rutten v. Rutten, 347 N.W.2d 47,
50 (Minn. 1984). When reviewing custody decisions, this court's role is limited to determining
whether the district court abused its discretion by making findings unsupported by the evidence or
by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).
In light of the district court's finding that Michael Lemcke initially attempted to alienate Dylan's
affection from his mother, Dayna Lemcke argues the district court abused its discretion as a matter
of law by placing sole physical custody with Michael Lemcke based on the strength of the
father-child bond. More specifically, she argues that because the father-child bond is the product of
Michael Lemcke's efforts to alienate Dylan from her, the court abused its discretion in premising its
custody decision on that bond. Whether a finding of alienation of affection precludes custodial
placement with the offending parent as a matter of law is a question of first impression in
Minnesota.
A majority of courts, including Minnesota courts, agrees 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 modifying custody. See, e.g., Henrikson v. Henrikson, 288 Minn. 532,
532-33, 179 N.W.2d 284, 285 (1970) (course of conduct including interference with visitation
and designed to alienate children from father's affection justified custody modification); Begins v.
Begins, 721 A.2d 469, 472 (Vt. 1998) (reversal of custody determination justified when mother
had been primary caretaker and evidence showed that father had encouraged sons' hostility toward
mother, corroded their relationship with her, and had demonstrated no capacity to place the
children's interests above his own). See generally Annotation, Alienation of Child's Affections as
Affecting Custody Award, 32 A.L.R.2d 1005 (1953).
But the paramount consideration in any custody decision is the best interests of the child. Minn.
Stat. § 518.17 (1998). In determining a child's best interests, Minnesota courts are statutorily
required to consider a variety of factors, including the disposition of each parent to encourage and
permit frequent and continuing contact by the other parent with the child. Minn. Stat. § 518.17,
subd. 1(a)(13). The legislature has expressly stated that no single factor is determinative. Minn.
Stat. § 518.17, subd. 1(a) (The court may not use one factor to the exclusion of all others.)
Instead, the court must weigh all statutory factors in the balance.
In support of her position that a finding of alienation automatically precludes Dylan's custodial
placement with Michael Lemcke as a matter of law, Dayna Lemcke first argues that because
interference with the parent-child relationship justifies a change of custody under Minnesota law, it
a fortiori precludes an initial custody placement with the offending parent. She further argues that
an offending parent must not be rewarded with custody. We disagree. First, the paramount
consideration in all custody decisions is the child's best interests, not the parents' conduct. Minn.
Stat. § 518.17, subd. 1. Children are not responsible for their parents' misconduct, and their best
interests should not be sacrificed merely to punish a misguided parent. See, e.g., Nickerson v.
Nickerson, 605 A.2d 1331, 1334 (Vt. 1992) (focus should be on children's needs rather than
parents' actions). This is not to say, of course, that a child's best interests are not furthered by
nurturing a healthy relationship with both parents and that a sustained course of conduct by one
parent designed to undermine the child's relationship with the other parent does not cast serious
doubt on the offending parent's fitness to have custody and may not, on occasion, justify a denial of
custody.
Second, evidence of alienation of affection does not automatically justify a change of custody.
Under Minnesota law, proof of unwarranted denial of or interference with established visitation
rights may be sufficient cause for reversal of custody. Minn. Stat. § 518.175, subd. 6(e) (1998)
(emphasis added); see also Minn. Stat. § 518.18 (c) (1998) (allowing motion to modify custody
earlier than one year after date of entry of decree of dissolution containing custody provision, on
finding of persistent and willful denial or interference with visitation). This court has also stated
that [a] denial or interference with visitation is not controlling in a custody-modification
proceeding, even though it must be considered along with the factors in Minn. Stat. § 518.18
(1998). Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000).
The cases on which Dayna Lemcke relies for the proposition that evidence of alienation precludes
custodial placement with the offending parent as a matter of law are distinguishable. In Henrikson,
for example, the court modified custody on a finding that the mother's interference with the father's
right to communicate and visit with his children was purposeful and destructive of the father-child
relationship. 288 Minn. at 532-33, 179 N.W.2d at 285. But the district court made no finding, and
the record contains no evidence, that Michael Lemcke deliberately interfered with Dayna Lemcke's
right to visit and communicate with Dylan or that his conduct was destructive of the mother-child
relationship. Similarly in Stoll v. Stoll, 243 Minn. 510, 68 N.W.2d 367 (1995), the court
transferred custody to the father on a finding that the mother had become delusional about the
father's desire to perform indecent acts with the children and had attempted to impress those
thoughts on the children. 243 Minn. at 512, 515, 68 N.W.2d at 369, 371. There is no finding
remotely similar in this case. Finally, in Sharp, the court modified custody based on evidence that
the mother had falsified reports of sexual abuse and subjected the children to unnecessary
sexual-abuse exams. 614 N.W.2d at 263. But, again, this record contains no similar finding or
evidence to support such a finding.
The foreign cases on which Dayna Lemcke relies similarly do not support her position that in
custody cases involving allegations of alienation of affection, courts may not consider the child's
bond to the offending parent or the child's preference for the offending parent. In Begins, for
example, the court recognized that the ability and disposition of each parent to foster a positive
relation with the other parent is [a] critical statutory factor guiding the court's [best-interests]
determination. 721 A.2d at 471. But the court also recognized that [o]ther statutory factors,
including of course the child's relationship with the primary care provider, must be weighed in the
balance, and may in certain cases be decisive. Id. at 471-72. And in holding that an award of
custody to the father was unacceptable, the court considered not only the father's constant
poisoning of the children's relationship with their mother and its detrimental effect on that
relationship, but also the mother's primary-caretaker role before the separation and the fact that
every other consideration rendered mother the more suitable custodian. Id. at 473. Begins does
not, therefore, support the proposition that in custody matters, evidence of alienation of affection is
determinative. See also In re Marriage of Will, 489 N.W.2d 394, 399 (Iowa 1992) (considering
parent's attempt to alienate child from other parent a significant factor in custody determination);
Fletcher v. Fletcher, 581 N.W.2d 11, 14 (Mich. Ct. App. 1998) (stating court properly weighed
evidence that children were more affectionate toward their mother against evidence that mother
discouraged children from showing affection toward their father); O'Connor v. O'Connor, 536
N.Y.S.2d 903, 905 (N.Y. 1989) (holding children's stated preference to live with their father is
not to be considered determinative when evidence supports finding that father was primarily
responsible for attempting to alienate children from their mother) (emphasis added).
In arriving at its custody determination, the district court did not consider Dylan's stated preference
and, properly, did not rely exclusively on the father-child bond, even though it considered it. See
Nehra v. Uhlar , 372 N.E.2d 4, 7 (N.Y. 1977) (The desires of young children, capable of
distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the
long-term best interest of the children.). Admittedly, the court found that Michael Lemcke had
initially attempted to undermine Dylan's relationship with his mother. But it also found that he was
able to put aside his anger toward Dayna Lemcke and do what was necessary to encourage
Dylan's relationship with his mother. The testimony of the custody evaluator, the psychologist
Dayna Lemcke hired, Dylan's daycare provider, and Michael Lemcke himself supports the court's
finding.
More important, the record contains no evidence that Michael Lemcke's conduct was designed to
alienate Dylan from his mother. Cf. Henrikson, 288 Minn. at 532-33, 179 N.W.2d at 285
(mother's interference with father's right to communicate and visit with his children was purposeful
and destructive of the father-child relationship); Stoll, 243 Minn. at 512, 68 N.W.2d at 369
(mother was delusional about father's desire to perform indecent acts with the children and had
attempted to impress those thoughts on the children). Similarly, the record contains no evidence
that Michael Lemcke's initial conduct actually alienated Dylan from his mother. Both the custody
evaluator and Dayna Lemcke's retained psychologist observed that Dylan interacted well with both
parents and was equally bonded to them. Dylan's seeming alienation from his mother was more
likely the result of the separation and the almost-inevitable ill feelings that follow it, feelings that
frequently throw off balance, at least initially, the child's affection for each parent. An allegation
unsupported by evidence of wrongful intent or detriment to the child should not affect custody
rights. Cf. Sharp, 614 N.W.2d at 263 (evidence that mother falsified reports of sexual abuse and
subjected the children to unnecessary sexual-abuse exams justified custody modification).
D E C I S I O N
The district court did not abuse its discretion in providing that Michael Lemcke have sole physical
custody of Dylan, notwithstanding its finding that Michael Lemcke initially attempted to alienate
Dylan's affection from his mother and her extended family.
Affirmed.
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