Preview
27-FA-16-1672
Filed in District Court
State of Minnesota
8/13/2019 8:33 AM
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Frederick Joseph Klug, Court File No. 27-FA-16-1672
Petitioner,
and FINDINGS AND ORDER
Galina Stupak,
Respondent.
The above-entitled matter came on for trial on May 16, 2019, before the Honorable Naomi
S. Garfinkel, Referee of District Court at the Family Justice Center, 110 South 4th Street, in the
City of Minneapolis, County of Hennepin, State of Minnesota.
Petitioner Frederick Joseph Klug (“Father”) appeared and represented himself.
Respondent Galina Markiv, f/k/a Galina Stupak, (“Mother”) appeared and represented
herself.
Based upon all the files, records, and the parties’ arguments, and the Court being fully
advised in the premises,
THE COURT FINDS:
1. The parties were never married and are the parents of Lexie Angelica Klug, born July 31,
2011 (“Lexie” or “the child”).
2. On March 8, 2016, Father filed a Petition to Establish Custody and Parenting Time. Father
requests sole legal and sole physical custody and that Mother be denied parenting time with
the child.
3. By Order of April 22, 2016, the prior judicial officer granted Father temporary sole legal
and sole physical custody of the child.
4. Mother did not file an Answer and Counterpetition or a Responsive Motion to Establish
Custody and Parenting Time. She stated at trial that she wants sole legal custody and
parenting time every Wednesday and every other weekend. She later stated that she wants
equal (“50/50”) parenting time.
5. The parties attended an Initial Case Management Conference (“ICMC”) before the prior
judicial officer on June 1, 2016. At the hearing, they agreed to participate in a Social Early
Neutral Evaluation (“SENE”) through Hennepin County Family Court Services (“FCS”).
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They also agreed that Mother would have non-overnight parenting time to be arranged by
the parties.
6. The parties reached no agreements at the SENE. On October 17, 2016, by separate orders,
the Court ordered Mother to have supervised parenting time and the parties to participate
in a custody and parenting time evaluation.
7. According to the Order of March 10, 2017, as amended on March 16, 2017, the evaluator
reported that Mother has had significant alcohol issues that have drastically influenced her
ability to function and have put the child at risk.
8. Mother entered an intensive inpatient treatment program in Seattle in March 2015. She
completed the program on September 28, 2015, and stayed on as an intern and volunteer
until June 2016. The evaluator did not make formal recommendations regarding custody
and parenting time because he had been unable to see Mother and child together. He did,
however, recommend that Mother be reintroduced to the child in a supervised setting
because the child had no memory of her. He also recommended that Mother undergo
random testing to ensure she has not relapsed, as well as therapeutic support for the family.
The Court ordered supervised parenting time once weekly, random urinalysis testing
(“UAs”) for Mother, and therapeutic family support services.
9. Following a parenting time evaluation ordered on October 12, 2017, the Court filed the
Order from February 14, 2018 Review Hearing on March 1, 2018, which gave Mother
unsupervised parenting time according to a graduated schedule. In that Order, the prior
judicial officer found that Mother was maintaining her sobriety and adopted the
recommendations of the parenting time evaluator.
10. On January 3, 2019, the parties appeared for a review hearing before the undersigned, and
the matter was scheduled for trial on March 20, 2019. The Trial Order was filed January 4,
2019. Following Mother’s request for a continuance, the Court filed the Second Trial Order
on March 7, 2019. Following the trial, the matter was taken under advisement on May 16,
2019.
11. The minor child has lived with Father since her birth; Mother lived with Father and the
minor child for the first one-and-a-half or two years of the child’s life. For a period, Mother
did not see the child for over two years. She explained at trial that her absence was in part
due to a “No Contact Order” that was in place against her, presumably the Order for
Protection (“OFP”) in court file number 27-FA-12-7325.
12. Notably, the “no contact” provision of the OFP carves out an exception for Mother to have
a minimum of six hours per week of parenting time. Mother also participated in an intensive
alcohol treatment program in Washington in 2015 and continued as a volunteer until
September 2016. She did not contact the child during that time.
13. Despite the specific parenting time schedule found in the Order of March 1, 2018, Mother
has not exercised her parenting time in any substantial way. Father testified that, although
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27-FA-16-1672
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Mother was supposed to have the child on alternate weekends, she has not been exercising
that parenting time. Mother did not dispute this representation at trial.
14. The Court will note that the parties’ exact parenting time schedule is unclear. At the time
of trial, with the exception of a few hours on Mother’s Day, Mother had not seen the child
in over a month. Mother testified that she had been exercising her parenting time as court-
ordered until she lost her driver’s license as a result of a hit and run she was involved with,
as explained more fully below. Although Father testified that Mother has no telephone
contact with Lexie outside of her parenting time, Mother contends that she called Lexie
regularly before the child’s cell phone was broken and not replaced.
15. The parties agree that Mother’s parenting time is arranged between Father and Mother’s
husband, Ivan Markiv. Mr. Markiv testified briefly as Mother’s witness. Father stated that
he trusts Mr. Markiv’s judgment in determining whether Mother is able to handle parenting
time on any particular day.
Custody
16. At the outset, the Court notes that this matter has been ongoing for nearly two years by the
time the matter was tried. The Court does not have the benefit of an updated parenting time
evaluation that could provide neutral insight into the parents’ circumstances and the child’s
best interests. However, it appears that the child has been successful with the current
parenting time schedule.
17. The Court also notes that, while Mother requested 50/50 parenting time at trial, she has
never shared 50/50 parenting time with Father. In fact, she has been absent and unreachable
for years of the child’s life. Only subsequent to the Order of March 10, 2017, was Mother
reintroduced to the child through supervised parenting time.
18. Father believes Mother continues to drink and that her drinking is the cause of her
instability. As explained above, Father arranges Mother’s parenting time through Mr.
Markiv because Father finds Mr. Markiv to be more reliable and trustworthy than Mother.
19. Mother testified at trial to being sober since March 16, 2015, which, at the time of trial,
was just over four years of sobriety. There exist doubts to Mother’s sobriety, however, and
concerns related to her commitment to sobriety. For example, Mother testified that she
does not want to attend Alcoholics Anonymous or any similar form of group support of
therapy to address her alcoholism. She stated that she attends church with the child and that
she finds church more beneficial than an alcohol treatment program.
20. There is also concern because Mother was arrested for a hit-and-run driving offense with
the child in the car in 2018, the details of which are unclear to the Court, but which may
have included alcohol.
21. When establishing custody, the Court must evaluate the best interests of the child pursuant
to Minn. Stat. § 518.17. The relevant best interest factors are considered below.
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(1) The child's physical, emotional, cultural, spiritual, and other needs, and the effect of the
proposed arrangements on the child's needs and development.
The parties acknowledge that Father has been the child’s primary caregiver for the large majority
of her life. He has at times had to remove the child from Mother’s care to protect her from actual
or perceived harm and instability, as demonstrated by him removing the child from Mother’s care
in South Carolina, as described below.
Father testified that the child is intelligent and outgoing; she loves Minecraft, playing with
chickens and pets, swimming, biking, waterparks, and parks. At the time of trial, Lexie was in the
first grade at Poplar Bridge Elementary, and Father stated that she is doing well in school.
Mother has been largely unavailable for the child and has, at times, gone years without contacting
her. After Father removed the child from Mother’s care in South Carolina, Mother did not contact
the child for approximately two years. She stated at trial that this was because of the
aforementioned OFP, which included a provision permitting Mother to have a minimum of six
hours of parenting time each week. Clearly, the OFP is insufficient justification for Mother’s lack
of contact when it in fact specifically permitted contact between Mother and the child.
Mother offered no testimony regarding her relationship with the child, or her knowledge of the
child’s school or community. No testimony was offered regarding how Mother’s proposed
parenting time schedule would benefit Lexie. Mother’s proposed parenting time schedule would
clearly be a significant departure from Lexie’s historical schedule and could likely interfere with
her school attendance and stability, given the distance between the parties’ homes.
Father stated that he has provided stable housing for the child, but that Mother’s housing has been
unstable. He cited Mother’s statement at a previous hearing in this proceeding that she and Mr.
Markiv may be divorcing and that she would be without a home. In his testimony, Mr. Markiv
stated that he told Father that Mother would no longer be able to live with him if she started
drinking.
This factor supports an award of sole physical custody and sole legal custody to Father.
(2) Any special medical, mental health, or educational needs that the child may have that
may require special parenting arrangements or access to recommended services.
There was no evidence offered that the child has any special medical, mental health, or educational
needs.
This factor is neutral.
(3) The reasonable preference of the child, if the court deems the child to be of sufficient
ability, age, and maturity to express an independent, reliable preference.
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The child is eight years old. The Court has not been made aware of the child’s current preference,
and has no information related to her maturity or ability to express an independent, reliable
preference. Given the child’s age, it is unlikely the Court would consider her preference.
This factor is neutral regarding a designation of custody.
(4) Whether domestic abuse, as defined in section 518B.01, has occurred in the parents' or
either parent's household or relationship; the nature and context of the domestic abuse;
and the implications of the domestic abuse for parenting and for the child's safety, well-
being, and developmental needs.
On October 24, 2012, the Court filed an Order for Protection (“OFP”) in court file number 27-FA-
12-7325 on behalf of the child for protection from Mother. When asked at trial why Mother had
not contacted the child for approximately two years, Mother stated that she did not contact the
child because of a No Contact Order, presumably, this one. However, as stated above, the OFP
carves out an exception for Mother to have a minimum of six hours per week of parenting time,
none of which Mother used. The Order for Protection expired on October 24, 2014.
Father, when asked about domestic violence at the trial, did not want to divulge any details
regarding the parties’ past relationship on the basis that he did not want to make the parties’ past
“idiocrasies” a part of the court record that may someday be available to Lexie. He stated that,
instead, he wanted Lexie to grow up “normal” and loved, without the influence of drinking and
destruction.
Despite the lack of details offered regarding domestic abuse between the parties, it is clear that the
parties had a volatile relationship in the past that was likely fueled by alcohol.
This factor supports awarding Father sole legal and sole physical custody.
(5) Any physical, mental, or chemical health issue of a parent that affects the child's safety
or developmental needs.
Mother admits that her alcohol use has caused problems in the past. She participated in intensive
alcohol treatment in Washington in September 2015, and stayed there as a volunteer an additional
6 months after she completed the program. During Mother’s time in Washington, she had no
contact with the child. More recently, she was involved in a car accident with Lexie and her
daughter from her relationship with Mr. Markiv in the vehicle. Mother left the scene of the
accident, purportedly to take care of the children. When the police became involved, Mother
refused to take a breathalyzer test and she was charged with Driving Under the Influence (“DUI”).
As a result, Mother’s driver’s license was suspended. Mother claims that she was sober during the
incident. The Court notes that Mother has tested negative for alcohol in all court-ordered UAs as
a part of this proceeding.
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Father participated in alcohol treatment program about one and a half years ago, but does not
currently abstain from alcohol use. He stated that he drinks a glass of wine or a couple of drinks
about once each week. Mother testified that, on one occasion, Father called her husband when
Father was drunk and stated that he did not know where the child was. Mother’s husband then
picked up Father in his vehicle and the two drove around and finally located the child. Mother’s
husband did not testify regarding the incident.
Mr. Markiv testified that he saw Mother drink three years ago, but that it was not every day or
every weekend. The couple does not keep alcohol in their home, and he believes Mother has been
sober since the time of the 2018 accident. He was unsure, however, of whether Mother was sober
at the time of the car accident in which she was charged with DUI.
Mother stated that she did not understand why Father is allowed to drink and she is not allowed to
drink. Mother’s remark demonstrates a low level of insight into alcoholism and the nature of
addiction. Further, Mother does not appear to recognize the role alcohol has played in her life and
in her lack of relationship with Lexie. However, Mother did agree to be sober during all parenting
time with Lexie.
This factor supports an award of sole legal and sole physical custody to Father.
(6) The history and nature of each parent's participation in providing care for the child.
Father has consistently provided for the child’s needs and has been her primary caregiver. He has
ensured her school attendance and provided for her care by adult half-siblings when he was
unavailable.
Mother has not historically been a large part of the child’s life. At times, Mother has been absent
for years. At least in part, this was due to Mother’s commitment to alcohol treatment in
Washington. However, this still left Father to shoulder the burden of caregiving responsibilities
for the child. Upon Mother’s return from Washington, she has not demonstrated a meaningful
desire to reconnect with the child.
Mother explained that, when she has not exercised her scheduled parenting time, it has been
because both her mother and sister have cancer and Mother sometimes has a hard time, such that
she is unable to exercise her parenting time.
Father stated that Mother is not reliable and is inconsistent. He also stated that the child sometimes
calls him to pick her up from Mother’s home because the child is uncomfortable. Mother admitted
that Lexie is sometimes uncomfortable during parenting time, but argued that it is because Father
speaks negatively about Mother to Lexie.
This factor supports an award of sole legal and sole physical custody to Father.
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(7) The willingness and ability of each parent to provide ongoing care for the child; to meet
the Child's ongoing developmental, emotional, spiritual, and cultural needs; and to
maintain consistency and follow through with parenting time.
Father has demonstrated his willingness and ability to provide responsible care for the child, and
has done so since her birth. He has ensured the child’s attendance at school, development and
recreational learning. When Father is unable to care for Lexie, the child’s older, adult half-siblings
care for her.
Mother is currently unable to be as active in Lexie’s life. She does not have a drivers’ license, she
has a very young second child, and has historically not provided Lexie’s daily care. Although
Mother appears to be sober at the moment, she does not appear to like sobriety or feel that it is
necessary. Mother exercises her currently-ordered parenting time inconsistently and she lacks
follow-through necessary to support the child’s ongoing needs.
This factor supports an award of sole legal and sole physical custody to Father.
(8) The effect on the child's well-being and development of changes to home, school, and
community.
Father is not proposing a change to the child’s home, school, or community.
It should be noted that Mother only recently, in 2017, became reintroduced to Lexie through
supervised parenting time, and the most recently-used schedule in which Mother has parenting
time every Wednesday and every other weekend is the most time that Lexie has ever spent with
Mother.
Mother proposes a substantial increase to her parenting time. However, Mother is not able to fully
exercise her current parenting time because she at times has trouble dealing with issues with her
family and life. Increasing the child’s exposure to Mother’s challenges would likely have a
negative effect on the child and should be minimized.
Mr. Markiv testified that the child is happy during Mother’s parenting time. However, giving
Mother significantly more parenting time would dramatically alter Lexie’s experience in her home,
school, and community, and no other details of Lexie’s life during Mother’s parenting time were
offered. As a result, the Court is unable to find that significant changes to Lexie’s home, school,
and community will benefit her.
This factor supports an award of sole physical custody to Father. It is neutral regarding legal
custody.
(9) The effect of the proposed arrangements on the ongoing relationships between the child
and each parent, siblings, and other significant persons in the child's life.
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Father provides for all daily care of the child, and facilitates her education, play, and learning. He
has two older children, now adults, who assist him with care of the child. He stated that the child
has a close relationship with her older half-siblings and affectionately calls her older sister “Mimi-
Momma.”
Mother has been absent for much of the child’s life and did not show at trial that she had substantial
knowledge of the child or involvement in the child’s life. The child has a younger half-sibling who
lives with Mother, but no testimony was offered regarding the child’s relationship with the half-
sibling.
This factor supports an award of sole legal and sole physical custody to Father.
(10) The benefit to the child in maximizing parenting time with both parents and the
detriment to the child in limiting parenting time with either parent.
The child will benefit from parenting time with both parents. Mother has self-limited her parenting
time for various reasons, including the OFP, Mother’s difficulty dealing with health concerns
within her family, and Mother’s lack of drivers’ license. Even before these situations arose,
however, Mother had little to no contact with Lexie
Father has provided all the daily care for the child. His parenting time should not be limited, except
to the extent that Mother is able to take on increased responsibility in safely providing for the
child’s care.
This factor supports an award of sole legal and sole physical custody to Father.
(11) Except in cases in which domestic abuse as described in clause (4) has occurred, the
disposition of each parent to support the child's relationship with the other parent and
to encourage and permit frequent and continuing contact between the child and the
other parent.
Domestic violence has occurred between the parties, although it was likely related in large part to
the parties’ use of alcohol. No active OFP is currently in place, however the parties were unable
to look at each other or speak to each other during trial. It is clear that the parties’ relationship has
not developed in a productive manner as the result of long-term dysfunction.
Father requests that Mother be granted no parenting time, but he stated that he would comply with
an Order giving Mother parenting time, if one is issued.
Mother appears to support the child’s relationship with Father. She stated that Father speaks
negatively about her to the child and she requests that each party be ordered to not disparage the
other in front of the child.
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This factor is neutral regarding legal and physical custody.
(12) The willingness and ability of parents to cooperate in the rearing of their child; to
maximize sharing information and minimize exposure of the child to parental conflict;
and to utilize methods for resolving disputes regarding any major decision concerning
the life of the child.
The parties are unable to communicate effectively, as evidenced by Father’s need to coordinate
Mother’s parenting time through Mr. Markiv and the parties’ inability to communicate effectively
while in court. Mother stated that Father speaks negatively about her in front of or to the child, and
Father did not contradict Mother’s statements.
Father stated that he is willing to share his decisions regarding the child with Mother.
The Court’s concern is that the animosity between the parties is insurmountable, and regular
communication would only lead to further disputes. As a result, Mother should have direct access
to Lexie’s schools, and Father should not be required to provide updates to Mother.
This factor supports an award of sole legal custody to Father and is neutral regarding physical
custody.
22. Based on the foregoing analysis, it is in the child’s best interests for Father to be granted
sole legal custody and sole physical custody.
23. Mother should be granted parenting time with Lexie. Although the Order of March 1, 2018,
granted Mother the opportunity to greatly increase her parenting time in phases, the
schedule the parties most recently attempted to use is the most parenting time Mother has
ever had with Lexie. That schedule gave Mother parenting time every Wednesday evening,
and every other weekend. Mother has been unable to exercise her full parenting time
according to that schedule, and no additional parenting time should be granted.
24. Mother’s parenting time should occur every Wednesday evening for two hours and every
other weekend from Friday evening to Sunday evening. Father should coordinate Mother’s
parenting time directly with Mother in writing, via e-mail or text. Mother must be sober
both before and during her parenting time with Lexie. If Father believes that Mother is not
sober during her parenting time, he may immediately suspend Mother’s parenting time.
25. Mother should have direct access to Lexie’s schools in order to obtain direct updates.
Father should not be required to provide Mother with updates regarding Lexie’s schools.
NOW, THEREFORE, based on the foregoing Findings,
IT IS ORDERED:
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1. Father shall have sole physical custody and sole legal custody of Lexie Angelica Klug,
born July 31, 2011.
2. Mother’s request for 50/50 parenting time is denied.
3. Mother shall have parenting time according to the following schedule and conditions:
a. Mother shall have parenting time every Wednesday evening for two hours and every other
weekend from Friday evening to Sunday evening.
b. Father and Mother will communicate directly by email or text to confirm and arrange the
details of parenting time exchanges.
c. Mother shall not consume alcohol before or during her parenting time. If Father believes
that Mother has consumed alcohol either before or during her parenting time, he may
immediately suspend Mother’s parenting time pending resolution of the issue or court
order.
d. Mother shall have direct access to Lexie’s schools in order to obtain direct updates from
them. Father shall not be required to provide Mother with updates regarding Lexie’s
schools.
4. Neither party shall speak disparagingly about the other party or allow others to do so in the
child’s presence.
5. If the parties are unable to agree on issues relating to the child, they shall attempt mediation
prior to bringing a motion before the Court.
6. Any requests not granted herein are denied.
7. All prior and consistent orders shall remain in effect.
8. Appendix A is attached and incorporated herein.
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IT IS SO ORDERED.
The foregoing order is recommended. Findings of Fact and Order approved.
Cutter, Elizabeth
Garfinkel, 2019.08.12
Naomi
2019.08.12 17:07:15 -05'00'
__________________________________
10:41:38 -05'00' ________________________________
Naomi S. Garfinkel Elizabeth V. Cutter
Referee of District Court Judge of District Court
Dated: August 12, 2019
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APPENDIX A
NOTICE IS HEREBY GIVEN TO THE PARTIES:
I. PAYMENTS TO PUBLIC AGENCY. According to Minnesota Statutes, section 518A.50,
payments ordered for maintenance and support must be paid to the Minnesota child support payment center
as long as the person entitled to receive the payments is receiving or has applied for public assistance or has
applied for support and maintenance collection services. Parents mail payments to: P.O. Box 64326, St. Paul,
MN 55164-0326. Employers mail payments to: P.O. Box 64306, St. Paul, MN 55164.
II. DEPRIVING ANOTHER OF CUSTODIAL OR PARENTAL RIGHTS -- A FELONY. A
person may be charged with a felony who conceals a minor child or takes, obtains, retains, or fails to return a
minor child from or to the child's parent (or person with custodial or parenting time rights), according to
Minnesota Statutes, section 609.26. A copy of that section is available from any court administrator.
III. NONSUPPORT OF A SPOUSE OR CHILD – CRIMINAL PENALTIES. A person who
fails to pay court-ordered child support or maintenance may be charged with a crime, which may include
misdemeanor, gross misdemeanor, or felony charges, according to Minnesota Statutes, section 609.375. A
copy of that section is available from any district court clerk.
IV. RULES OF SUPPORT, MAINTENANCE, PARENTING TIME.
A. Payment of support or spousal maintenance is to be as ordered, and the giving of gifts or making
purchases of food, clothing, and the like will not fulfill the obligation.
B. Payment of support must be made as it becomes due, and failure to secure or denial of parenting time
is NOT an excuse for nonpayment, but the aggrieved party must seek relief through a proper motion
filed with the court.
C. Nonpayment of support is not grounds to deny parenting time. The party entitled to receive
support may apply for support and collection services, file a contempt motion, or obtain a
judgment as provided in Minnesota Statutes, section 548.091.
D. The payment of support or spousal maintenance takes priority over payment of debts and other
obligations.
E. A party who accepts additional obligations of support does so with the full knowledge of the party's
prior obligation under this proceeding.
F. Child support or maintenance is based on annual income, and it is the responsibility of a person with
seasonal employment to budget income so that payments are made throughout the year as ordered.
G. A Parental Guide to Making Child-Focused Parenting-Time Decisions is available from any court
administrator.
H. The nonpayment of support may be enforced through the denial of student grants; interception of
state and federal tax refunds; suspension of driver’s, recreational, and occupational licenses; referral
to the department of revenue or private collection agencies; seizure of assets, including bank accounts
and other assets held by financial institutions; reporting to credit bureaus; interest charging, income
withholding, and contempt proceedings; and other enforcement methods allowed by law.
I. The public authority may suspend or resume collection of the amount allocated for child care
expenses if the conditions of Minnesota Statutes, section 518A.40, subdivision 4, are met.
J. The public authority may remove or resume a medical support offset if the conditions of section
518A.41, subdivision 16, are met.
K. The public authority may suspend or resume interest charging on child support judgments if the
conditions of section 548.091, subdivision 1a, are met.
V. MODIFYING CHILD SUPPORT. If either the obligor or obligee is laid off from employment
or receives a pay reduction, child support may be modified, increased, or decreased. Any modification will
only take effect when it is ordered by the court, and will only relate back to the time that a motion is filed.
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Either the obligor or obligee may file a motion to modify child support, and may request the public agency
for help. UNTIL A MOTION IS FILED, THE CHILD SUPPORT OBLIGATION WILL CONTINUE AT
THE CURRENT LEVEL. THE COURT IS NOT PERMITTED TO REDUCE SUPPORT
RETROACTIVELY.
VI. PARENTAL RIGHTS FROM MINNESOTA STATUTES, SECTION 518.17,
SUBDIVISION 3. UNLESS OTHERWISE PROVIDED BY THE COURT:
A. Each party has the right of access to, and to re
Preview
27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT FAMILY COURT DIVISION Frederick Joseph Klug, Court File No. 27-FA-16-1672 Petitioner, and FINDINGS AND ORDER Galina Stupak, Respondent. The above-entitled matter came on for trial on May 16, 2019, before the Honorable Naomi S. Garfinkel, Referee of District Court at the Family Justice Center, 110 South 4th Street, in the City of Minneapolis, County of Hennepin, State of Minnesota. Petitioner Frederick Joseph Klug (“Father”) appeared and represented himself. Respondent Galina Markiv, f/k/a Galina Stupak, (“Mother”) appeared and represented herself. Based upon all the files, records, and the parties’ arguments, and the Court being fully advised in the premises, THE COURT FINDS: 1. The parties were never married and are the parents of Lexie Angelica Klug, born July 31, 2011 (“Lexie” or “the child”). 2. On March 8, 2016, Father filed a Petition to Establish Custody and Parenting Time. Father requests sole legal and sole physical custody and that Mother be denied parenting time with the child. 3. By Order of April 22, 2016, the prior judicial officer granted Father temporary sole legal and sole physical custody of the child. 4. Mother did not file an Answer and Counterpetition or a Responsive Motion to Establish Custody and Parenting Time. She stated at trial that she wants sole legal custody and parenting time every Wednesday and every other weekend. She later stated that she wants equal (“50/50”) parenting time. 5. The parties attended an Initial Case Management Conference (“ICMC”) before the prior judicial officer on June 1, 2016. At the hearing, they agreed to participate in a Social Early Neutral Evaluation (“SENE”) through Hennepin County Family Court Services (“FCS”). 1 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM They also agreed that Mother would have non-overnight parenting time to be arranged by the parties. 6. The parties reached no agreements at the SENE. On October 17, 2016, by separate orders, the Court ordered Mother to have supervised parenting time and the parties to participate in a custody and parenting time evaluation. 7. According to the Order of March 10, 2017, as amended on March 16, 2017, the evaluator reported that Mother has had significant alcohol issues that have drastically influenced her ability to function and have put the child at risk. 8. Mother entered an intensive inpatient treatment program in Seattle in March 2015. She completed the program on September 28, 2015, and stayed on as an intern and volunteer until June 2016. The evaluator did not make formal recommendations regarding custody and parenting time because he had been unable to see Mother and child together. He did, however, recommend that Mother be reintroduced to the child in a supervised setting because the child had no memory of her. He also recommended that Mother undergo random testing to ensure she has not relapsed, as well as therapeutic support for the family. The Court ordered supervised parenting time once weekly, random urinalysis testing (“UAs”) for Mother, and therapeutic family support services. 9. Following a parenting time evaluation ordered on October 12, 2017, the Court filed the Order from February 14, 2018 Review Hearing on March 1, 2018, which gave Mother unsupervised parenting time according to a graduated schedule. In that Order, the prior judicial officer found that Mother was maintaining her sobriety and adopted the recommendations of the parenting time evaluator. 10. On January 3, 2019, the parties appeared for a review hearing before the undersigned, and the matter was scheduled for trial on March 20, 2019. The Trial Order was filed January 4, 2019. Following Mother’s request for a continuance, the Court filed the Second Trial Order on March 7, 2019. Following the trial, the matter was taken under advisement on May 16, 2019. 11. The minor child has lived with Father since her birth; Mother lived with Father and the minor child for the first one-and-a-half or two years of the child’s life. For a period, Mother did not see the child for over two years. She explained at trial that her absence was in part due to a “No Contact Order” that was in place against her, presumably the Order for Protection (“OFP”) in court file number 27-FA-12-7325. 12. Notably, the “no contact” provision of the OFP carves out an exception for Mother to have a minimum of six hours per week of parenting time. Mother also participated in an intensive alcohol treatment program in Washington in 2015 and continued as a volunteer until September 2016. She did not contact the child during that time. 13. Despite the specific parenting time schedule found in the Order of March 1, 2018, Mother has not exercised her parenting time in any substantial way. Father testified that, although 2 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM Mother was supposed to have the child on alternate weekends, she has not been exercising that parenting time. Mother did not dispute this representation at trial. 14. The Court will note that the parties’ exact parenting time schedule is unclear. At the time of trial, with the exception of a few hours on Mother’s Day, Mother had not seen the child in over a month. Mother testified that she had been exercising her parenting time as court- ordered until she lost her driver’s license as a result of a hit and run she was involved with, as explained more fully below. Although Father testified that Mother has no telephone contact with Lexie outside of her parenting time, Mother contends that she called Lexie regularly before the child’s cell phone was broken and not replaced. 15. The parties agree that Mother’s parenting time is arranged between Father and Mother’s husband, Ivan Markiv. Mr. Markiv testified briefly as Mother’s witness. Father stated that he trusts Mr. Markiv’s judgment in determining whether Mother is able to handle parenting time on any particular day. Custody 16. At the outset, the Court notes that this matter has been ongoing for nearly two years by the time the matter was tried. The Court does not have the benefit of an updated parenting time evaluation that could provide neutral insight into the parents’ circumstances and the child’s best interests. However, it appears that the child has been successful with the current parenting time schedule. 17. The Court also notes that, while Mother requested 50/50 parenting time at trial, she has never shared 50/50 parenting time with Father. In fact, she has been absent and unreachable for years of the child’s life. Only subsequent to the Order of March 10, 2017, was Mother reintroduced to the child through supervised parenting time. 18. Father believes Mother continues to drink and that her drinking is the cause of her instability. As explained above, Father arranges Mother’s parenting time through Mr. Markiv because Father finds Mr. Markiv to be more reliable and trustworthy than Mother. 19. Mother testified at trial to being sober since March 16, 2015, which, at the time of trial, was just over four years of sobriety. There exist doubts to Mother’s sobriety, however, and concerns related to her commitment to sobriety. For example, Mother testified that she does not want to attend Alcoholics Anonymous or any similar form of group support of therapy to address her alcoholism. She stated that she attends church with the child and that she finds church more beneficial than an alcohol treatment program. 20. There is also concern because Mother was arrested for a hit-and-run driving offense with the child in the car in 2018, the details of which are unclear to the Court, but which may have included alcohol. 21. When establishing custody, the Court must evaluate the best interests of the child pursuant to Minn. Stat. § 518.17. The relevant best interest factors are considered below. 3 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM (1) The child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development. The parties acknowledge that Father has been the child’s primary caregiver for the large majority of her life. He has at times had to remove the child from Mother’s care to protect her from actual or perceived harm and instability, as demonstrated by him removing the child from Mother’s care in South Carolina, as described below. Father testified that the child is intelligent and outgoing; she loves Minecraft, playing with chickens and pets, swimming, biking, waterparks, and parks. At the time of trial, Lexie was in the first grade at Poplar Bridge Elementary, and Father stated that she is doing well in school. Mother has been largely unavailable for the child and has, at times, gone years without contacting her. After Father removed the child from Mother’s care in South Carolina, Mother did not contact the child for approximately two years. She stated at trial that this was because of the aforementioned OFP, which included a provision permitting Mother to have a minimum of six hours of parenting time each week. Clearly, the OFP is insufficient justification for Mother’s lack of contact when it in fact specifically permitted contact between Mother and the child. Mother offered no testimony regarding her relationship with the child, or her knowledge of the child’s school or community. No testimony was offered regarding how Mother’s proposed parenting time schedule would benefit Lexie. Mother’s proposed parenting time schedule would clearly be a significant departure from Lexie’s historical schedule and could likely interfere with her school attendance and stability, given the distance between the parties’ homes. Father stated that he has provided stable housing for the child, but that Mother’s housing has been unstable. He cited Mother’s statement at a previous hearing in this proceeding that she and Mr. Markiv may be divorcing and that she would be without a home. In his testimony, Mr. Markiv stated that he told Father that Mother would no longer be able to live with him if she started drinking. This factor supports an award of sole physical custody and sole legal custody to Father. (2) Any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services. There was no evidence offered that the child has any special medical, mental health, or educational needs. This factor is neutral. (3) The reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference. 4 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM The child is eight years old. The Court has not been made aware of the child’s current preference, and has no information related to her maturity or ability to express an independent, reliable preference. Given the child’s age, it is unlikely the Court would consider her preference. This factor is neutral regarding a designation of custody. (4) Whether domestic abuse, as defined in section 518B.01, has occurred in the parents' or either parent's household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child's safety, well- being, and developmental needs. On October 24, 2012, the Court filed an Order for Protection (“OFP”) in court file number 27-FA- 12-7325 on behalf of the child for protection from Mother. When asked at trial why Mother had not contacted the child for approximately two years, Mother stated that she did not contact the child because of a No Contact Order, presumably, this one. However, as stated above, the OFP carves out an exception for Mother to have a minimum of six hours per week of parenting time, none of which Mother used. The Order for Protection expired on October 24, 2014. Father, when asked about domestic violence at the trial, did not want to divulge any details regarding the parties’ past relationship on the basis that he did not want to make the parties’ past “idiocrasies” a part of the court record that may someday be available to Lexie. He stated that, instead, he wanted Lexie to grow up “normal” and loved, without the influence of drinking and destruction. Despite the lack of details offered regarding domestic abuse between the parties, it is clear that the parties had a volatile relationship in the past that was likely fueled by alcohol. This factor supports awarding Father sole legal and sole physical custody. (5) Any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs. Mother admits that her alcohol use has caused problems in the past. She participated in intensive alcohol treatment in Washington in September 2015, and stayed there as a volunteer an additional 6 months after she completed the program. During Mother’s time in Washington, she had no contact with the child. More recently, she was involved in a car accident with Lexie and her daughter from her relationship with Mr. Markiv in the vehicle. Mother left the scene of the accident, purportedly to take care of the children. When the police became involved, Mother refused to take a breathalyzer test and she was charged with Driving Under the Influence (“DUI”). As a result, Mother’s driver’s license was suspended. Mother claims that she was sober during the incident. The Court notes that Mother has tested negative for alcohol in all court-ordered UAs as a part of this proceeding. 5 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM Father participated in alcohol treatment program about one and a half years ago, but does not currently abstain from alcohol use. He stated that he drinks a glass of wine or a couple of drinks about once each week. Mother testified that, on one occasion, Father called her husband when Father was drunk and stated that he did not know where the child was. Mother’s husband then picked up Father in his vehicle and the two drove around and finally located the child. Mother’s husband did not testify regarding the incident. Mr. Markiv testified that he saw Mother drink three years ago, but that it was not every day or every weekend. The couple does not keep alcohol in their home, and he believes Mother has been sober since the time of the 2018 accident. He was unsure, however, of whether Mother was sober at the time of the car accident in which she was charged with DUI. Mother stated that she did not understand why Father is allowed to drink and she is not allowed to drink. Mother’s remark demonstrates a low level of insight into alcoholism and the nature of addiction. Further, Mother does not appear to recognize the role alcohol has played in her life and in her lack of relationship with Lexie. However, Mother did agree to be sober during all parenting time with Lexie. This factor supports an award of sole legal and sole physical custody to Father. (6) The history and nature of each parent's participation in providing care for the child. Father has consistently provided for the child’s needs and has been her primary caregiver. He has ensured her school attendance and provided for her care by adult half-siblings when he was unavailable. Mother has not historically been a large part of the child’s life. At times, Mother has been absent for years. At least in part, this was due to Mother’s commitment to alcohol treatment in Washington. However, this still left Father to shoulder the burden of caregiving responsibilities for the child. Upon Mother’s return from Washington, she has not demonstrated a meaningful desire to reconnect with the child. Mother explained that, when she has not exercised her scheduled parenting time, it has been because both her mother and sister have cancer and Mother sometimes has a hard time, such that she is unable to exercise her parenting time. Father stated that Mother is not reliable and is inconsistent. He also stated that the child sometimes calls him to pick her up from Mother’s home because the child is uncomfortable. Mother admitted that Lexie is sometimes uncomfortable during parenting time, but argued that it is because Father speaks negatively about Mother to Lexie. This factor supports an award of sole legal and sole physical custody to Father. 6 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM (7) The willingness and ability of each parent to provide ongoing care for the child; to meet the Child's ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time. Father has demonstrated his willingness and ability to provide responsible care for the child, and has done so since her birth. He has ensured the child’s attendance at school, development and recreational learning. When Father is unable to care for Lexie, the child’s older, adult half-siblings care for her. Mother is currently unable to be as active in Lexie’s life. She does not have a drivers’ license, she has a very young second child, and has historically not provided Lexie’s daily care. Although Mother appears to be sober at the moment, she does not appear to like sobriety or feel that it is necessary. Mother exercises her currently-ordered parenting time inconsistently and she lacks follow-through necessary to support the child’s ongoing needs. This factor supports an award of sole legal and sole physical custody to Father. (8) The effect on the child's well-being and development of changes to home, school, and community. Father is not proposing a change to the child’s home, school, or community. It should be noted that Mother only recently, in 2017, became reintroduced to Lexie through supervised parenting time, and the most recently-used schedule in which Mother has parenting time every Wednesday and every other weekend is the most time that Lexie has ever spent with Mother. Mother proposes a substantial increase to her parenting time. However, Mother is not able to fully exercise her current parenting time because she at times has trouble dealing with issues with her family and life. Increasing the child’s exposure to Mother’s challenges would likely have a negative effect on the child and should be minimized. Mr. Markiv testified that the child is happy during Mother’s parenting time. However, giving Mother significantly more parenting time would dramatically alter Lexie’s experience in her home, school, and community, and no other details of Lexie’s life during Mother’s parenting time were offered. As a result, the Court is unable to find that significant changes to Lexie’s home, school, and community will benefit her. This factor supports an award of sole physical custody to Father. It is neutral regarding legal custody. (9) The effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life. 7 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM Father provides for all daily care of the child, and facilitates her education, play, and learning. He has two older children, now adults, who assist him with care of the child. He stated that the child has a close relationship with her older half-siblings and affectionately calls her older sister “Mimi- Momma.” Mother has been absent for much of the child’s life and did not show at trial that she had substantial knowledge of the child or involvement in the child’s life. The child has a younger half-sibling who lives with Mother, but no testimony was offered regarding the child’s relationship with the half- sibling. This factor supports an award of sole legal and sole physical custody to Father. (10) The benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent. The child will benefit from parenting time with both parents. Mother has self-limited her parenting time for various reasons, including the OFP, Mother’s difficulty dealing with health concerns within her family, and Mother’s lack of drivers’ license. Even before these situations arose, however, Mother had little to no contact with Lexie Father has provided all the daily care for the child. His parenting time should not be limited, except to the extent that Mother is able to take on increased responsibility in safely providing for the child’s care. This factor supports an award of sole legal and sole physical custody to Father. (11) Except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child's relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent. Domestic violence has occurred between the parties, although it was likely related in large part to the parties’ use of alcohol. No active OFP is currently in place, however the parties were unable to look at each other or speak to each other during trial. It is clear that the parties’ relationship has not developed in a productive manner as the result of long-term dysfunction. Father requests that Mother be granted no parenting time, but he stated that he would comply with an Order giving Mother parenting time, if one is issued. Mother appears to support the child’s relationship with Father. She stated that Father speaks negatively about her to the child and she requests that each party be ordered to not disparage the other in front of the child. 8 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM This factor is neutral regarding legal and physical custody. (12) The willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child. The parties are unable to communicate effectively, as evidenced by Father’s need to coordinate Mother’s parenting time through Mr. Markiv and the parties’ inability to communicate effectively while in court. Mother stated that Father speaks negatively about her in front of or to the child, and Father did not contradict Mother’s statements. Father stated that he is willing to share his decisions regarding the child with Mother. The Court’s concern is that the animosity between the parties is insurmountable, and regular communication would only lead to further disputes. As a result, Mother should have direct access to Lexie’s schools, and Father should not be required to provide updates to Mother. This factor supports an award of sole legal custody to Father and is neutral regarding physical custody. 22. Based on the foregoing analysis, it is in the child’s best interests for Father to be granted sole legal custody and sole physical custody. 23. Mother should be granted parenting time with Lexie. Although the Order of March 1, 2018, granted Mother the opportunity to greatly increase her parenting time in phases, the schedule the parties most recently attempted to use is the most parenting time Mother has ever had with Lexie. That schedule gave Mother parenting time every Wednesday evening, and every other weekend. Mother has been unable to exercise her full parenting time according to that schedule, and no additional parenting time should be granted. 24. Mother’s parenting time should occur every Wednesday evening for two hours and every other weekend from Friday evening to Sunday evening. Father should coordinate Mother’s parenting time directly with Mother in writing, via e-mail or text. Mother must be sober both before and during her parenting time with Lexie. If Father believes that Mother is not sober during her parenting time, he may immediately suspend Mother’s parenting time. 25. Mother should have direct access to Lexie’s schools in order to obtain direct updates. Father should not be required to provide Mother with updates regarding Lexie’s schools. NOW, THEREFORE, based on the foregoing Findings, IT IS ORDERED: 9 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM 1. Father shall have sole physical custody and sole legal custody of Lexie Angelica Klug, born July 31, 2011. 2. Mother’s request for 50/50 parenting time is denied. 3. Mother shall have parenting time according to the following schedule and conditions: a. Mother shall have parenting time every Wednesday evening for two hours and every other weekend from Friday evening to Sunday evening. b. Father and Mother will communicate directly by email or text to confirm and arrange the details of parenting time exchanges. c. Mother shall not consume alcohol before or during her parenting time. If Father believes that Mother has consumed alcohol either before or during her parenting time, he may immediately suspend Mother’s parenting time pending resolution of the issue or court order. d. Mother shall have direct access to Lexie’s schools in order to obtain direct updates from them. Father shall not be required to provide Mother with updates regarding Lexie’s schools. 4. Neither party shall speak disparagingly about the other party or allow others to do so in the child’s presence. 5. If the parties are unable to agree on issues relating to the child, they shall attempt mediation prior to bringing a motion before the Court. 6. Any requests not granted herein are denied. 7. All prior and consistent orders shall remain in effect. 8. Appendix A is attached and incorporated herein. 10 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM IT IS SO ORDERED. The foregoing order is recommended. Findings of Fact and Order approved. Cutter, Elizabeth Garfinkel, 2019.08.12 Naomi 2019.08.12 17:07:15 -05'00' __________________________________ 10:41:38 -05'00' ________________________________ Naomi S. Garfinkel Elizabeth V. Cutter Referee of District Court Judge of District Court Dated: August 12, 2019 11 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM APPENDIX A NOTICE IS HEREBY GIVEN TO THE PARTIES: I. PAYMENTS TO PUBLIC AGENCY. According to Minnesota Statutes, section 518A.50, payments ordered for maintenance and support must be paid to the Minnesota child support payment center as long as the person entitled to receive the payments is receiving or has applied for public assistance or has applied for support and maintenance collection services. Parents mail payments to: P.O. Box 64326, St. Paul, MN 55164-0326. Employers mail payments to: P.O. Box 64306, St. Paul, MN 55164. II. DEPRIVING ANOTHER OF CUSTODIAL OR PARENTAL RIGHTS -- A FELONY. A person may be charged with a felony who conceals a minor child or takes, obtains, retains, or fails to return a minor child from or to the child's parent (or person with custodial or parenting time rights), according to Minnesota Statutes, section 609.26. A copy of that section is available from any court administrator. III. NONSUPPORT OF A SPOUSE OR CHILD – CRIMINAL PENALTIES. A person who fails to pay court-ordered child support or maintenance may be charged with a crime, which may include misdemeanor, gross misdemeanor, or felony charges, according to Minnesota Statutes, section 609.375. A copy of that section is available from any district court clerk. IV. RULES OF SUPPORT, MAINTENANCE, PARENTING TIME. A. Payment of support or spousal maintenance is to be as ordered, and the giving of gifts or making purchases of food, clothing, and the like will not fulfill the obligation. B. Payment of support must be made as it becomes due, and failure to secure or denial of parenting time is NOT an excuse for nonpayment, but the aggrieved party must seek relief through a proper motion filed with the court. C. Nonpayment of support is not grounds to deny parenting time. The party entitled to receive support may apply for support and collection services, file a contempt motion, or obtain a judgment as provided in Minnesota Statutes, section 548.091. D. The payment of support or spousal maintenance takes priority over payment of debts and other obligations. E. A party who accepts additional obligations of support does so with the full knowledge of the party's prior obligation under this proceeding. F. Child support or maintenance is based on annual income, and it is the responsibility of a person with seasonal employment to budget income so that payments are made throughout the year as ordered. G. A Parental Guide to Making Child-Focused Parenting-Time Decisions is available from any court administrator. H. The nonpayment of support may be enforced through the denial of student grants; interception of state and federal tax refunds; suspension of driver’s, recreational, and occupational licenses; referral to the department of revenue or private collection agencies; seizure of assets, including bank accounts and other assets held by financial institutions; reporting to credit bureaus; interest charging, income withholding, and contempt proceedings; and other enforcement methods allowed by law. I. The public authority may suspend or resume collection of the amount allocated for child care expenses if the conditions of Minnesota Statutes, section 518A.40, subdivision 4, are met. J. The public authority may remove or resume a medical support offset if the conditions of section 518A.41, subdivision 16, are met. K. The public authority may suspend or resume interest charging on child support judgments if the conditions of section 548.091, subdivision 1a, are met. V. MODIFYING CHILD SUPPORT. If either the obligor or obligee is laid off from employment or receives a pay reduction, child support may be modified, increased, or decreased. Any modification will only take effect when it is ordered by the court, and will only relate back to the time that a motion is filed. 27-FA-16-1672 Filed in District Court State of Minnesota 8/13/2019 8:33 AM Either the obligor or obligee may file a motion to modify child support, and may request the public agency for help. UNTIL A MOTION IS FILED, THE CHILD SUPPORT OBLIGATION WILL CONTINUE AT THE CURRENT LEVEL. THE COURT IS NOT PERMITTED TO REDUCE SUPPORT RETROACTIVELY. VI. PARENTAL RIGHTS FROM MINNESOTA STATUTES, SECTION 518.17, SUBDIVISION 3. UNLESS OTHERWISE PROVIDED BY THE COURT: A. Each party has the right of access to, and to re