author: ANDERSON, RUSSELL A., Justice.

text:
    Scott Nolan KING, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C2-01-2251.
    Supreme Court of Minnesota.
    Aug. 1, 2002.

      Scott Nolan King, Stillwater, for Appellant.
    Mike Hatch, Minnesota Attorney General, St Paul, Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellant Scott Nolan King appeals from the denial of his second petition for postconviction relief, stemming from his conviction for first-degree murder while attempting to commit first-degree criminal sexual conduct for the 1992 killing of Gwendolyn Lewis. We affirmed his conviction on direct appeal, State v. King, 513 N.W.2d 245, 249 (Minn.1994) (King I), and affirmed the denial of his first petition for postconviction relief, King v. State, 562 N.W.2d 791, 797 (Minn.1997) (King II). In his second petition for postconviction relief appellant argues inter alia that (1) DNA testing procedures used in his case were unreliable and that the DNA evidence should have been suppressed; (2) the statute under which he was convicted, Minn.Stat. § 609.185(2) (1990), has been rendered unconstitutional since his conviction; (3) the district court erroneously admitted into evidence his statements to police without first specifying whether it had viewed a videotape of the police interrogation; and (4) he was deprived of the effective assistance of trial and appellate counsel. The postconviction court denied the request for an evidentiary hearing and for relief, ruling that appellant’s claims were procedurally barred because each claim had been raised or should have been raised on direct appeal or in his first postconviction proceeding. Appellant requests that we address his claims on the merits and reverse the postconviction court’s judgment denying relief. We hold that the postconviction court did not abuse its discretion by denying an evidentiary hearing and by denying relief. Therefore, we affirm.

On or about February 6, 1992, Gwendolyn Lewis was stabbed to death in her Minneapolis apartment. The medical examiner found semen in Lewis’s vagina, in her anus, and on her buttocks, and testified that the evidence was “highly suggestive” that sexual activity occurred after death. Later the police received information that appellant had admitted to killing Lewis and obtained a search warrant to remove appellant’s blood for comparison with semen samples from the crime scene. Appellant told police officers that he knew about DNA analysis and was happy to give a blood sample .because he did not have sex with Lewis. When analysis showed appellant’s DNA matched the DNA profile of the semen from the crime scene, appellant was arrested. When informed of the test results and that he was under arrest for Lewis’s murder, appellant stated, “I knew it. Just because I f — ed her doesn’t mean I killed her, does it?”

During police interrogation appellant provided several versions of what occurred on the night of February 6, 1992. He initially denied having sex with Lewis, but later admitted that Lewis had consensual vaginal sex with him in exchange for crack cocaine; however he denied having anal sex with Lewis or killing her. During two days of interrogation appellant told police that he had discovered the body after the murder, and that Lewis had been killed by an unidentified Cuban or by one of her neighbors. Later in the interrogation appellant said, “I don’t know the reason I killed her. So high.” He also stated, “I done killed this woman,” “I guess I did,” and “It ain’t nobody else.” In his formal statement, he admitted that it was “possible” that he killed Gwendolyn- Lewis “[because * * * there was no one there but her and me.” Appellant never said that he knew for sure that he had killed Lewis.

Before trial appellant moved to suppress his statements to the police, claiming the statements were involuntary because of his vulnerable state of mind during interrogation. Appellant, also moved to suppress DNA evidence - on the basis that blood samples taken from him were obtained in violation .of his Fourth Amendment rights. The district court denied these motions and admitted the statements, as well as DNA evidence. At trial the state’s expert laid a foundation for the DNA evidence, establishing that the laboratory conducts “restriction fragment length polymorphism analysis” where the scientist analyzes a series of six “autorads” from each DNA sample. The scientist testified that the DNA profile he obtained from three samples of semen found ■ on Lewis’s buttocks and-in her vagina “match[ed]” the DNA profile from appellant’s blood. The expert also testified that in order to establish the probability of a “random match” where two individuals share-the same DNA profile, the sample was compared to a database of nearly 800 individuals made up of Caucasians, Native Americans and African Americans. The expert testified that in this case, the probability of a random match between appellant’s DNA and each of the racial databases was less than 1 in 1 billion.

At trial, appellant’s theory of the case was that he had consensual sex with Lewis on February 6, then left her apartment. Appellant contended that his confession was involuntary because he confessed after a lengthy interrogation and did not give sufficient details of the crime to corroborate his confession. Key evidence against appellant at trial included (1) testimony that appellant supplied crack cocaine to the residents of the building, including Lewis, (2) testimony of multiple witnesses that placed appellant in the apartment across the hall from Lewis’s apartment on the day Lewis’s death was believed to have occurred; (3) testimony that several days after the murder appellant admitted killing Lewis; (4) appellant’s inconsistent statements to police; (5) expert testimony that the DNA in defendant’s blood matched the DNA in the semen found in and on Lewis’s body and that the possibility of a random match was 1 in 1 billion, and (6) Spreigl evidence that in December 1987 appellant had brutally assaulted another female acquaintance while threatening to kill her, and had dragged her partially clad body down a flight of stairs, leaving a trail of blood as he did so. The jury found appellant guilty of first-degree murder, and he was sentenced to life imprisonment.

On direct appeal, appellant’s counsel— who was not appellant’s trial counsel— argued that the results of appellant’s blood test should have been suppressed because the affidavit supporting the search warrant contained a misrepresentation, that appellant’s statements to the police should have been suppressed as fruits of an unlawful search and because appellant was not advised of his Miranda rights before making certain statements, and that the district court erred in admitting Spreigl evidence. Appellant filed a pro se brief on appeal, arguing that his conviction should be reversed on six grounds, including ineffective assistance of counsel for failing to call three witnesses, including the doctor who performed Lewis’s autopsy, arguing that the doctor could establish that her body showed no signs of trauma associated with sexual intercourse. In King I we held that the search warrant was valid, any error in admitting appellant’s statement made when the search warrant was executed was harmless and that the Spreigl evidence was properly admitted. See King I, 513 N.W.2d at 248-49. We also noted that we had considered appellant’s pro se brief and — without written analysis of each argument — concluded that appellant received a fair trial and was properly convicted. See id. at 249.

In 1996 appellant filed his first petition for postconviction relief, seeking vacation of his sentence or a new trial. Appellant asserted that (1) the district court erred in admitting DNA evidence without first conducting a Frye hearing and (2) he was denied effective assistance of counsel because his trial counsel did not request a Frye hearing and because his appellate counsel did not appeal the Frye issue. Appellant requested an evidentiary hearing on his petition. Appellant’s petition for an evidentiary hearing and for postconviction relief was denied in all respects by the same district court judge that presided over the trial and sentencing. In denying appellant’s petition, the postconviction court concluded that appellant did not raise any novel claims, that the grounds for relief he presented were known at the time of his appeal, that he had received effective representation at trial and a fair trial, and that he had failed to meet his burden of proving that his appellate counsel’s representation fell below an objective standard of reasonableness. We affirmed the postconviction court’s denial of relief. King II, 562 N.W.2d at 797.

Next appellant filed the petition for postconviction relief at issue here. In this second petition in state court appellant made the following claims: (1) DNA testing procedures used in his case were unreliable and the DNA evidence should have been suppressed; (2) the statute under which he had been convicted, Minn.Stat. § 609.185(2), should be declared unconstitutional; (3) the district court erroneously admitted into evidence his statement to police without first specifying whether it had viewed a videotape of the police interrogation; (4) he was deprived of the effective assistance of trial and appellate counsel; (5) the evidence presented at trial was insufficient to support the jury verdict that the crime occurred in Hennepin County. Appellant also requested an evidentiary hearing on these claims and requested the appointment of counsel.

On November 8, 2001, the postcon-viction court denied appellant’s second petition concluding that: (1) appellant “failed to affirmatively prove” that his trial or appellate counsel was ineffective under the Strickland v. Washington test and “[a]f-ter viewing the totality of the trial proceedings, the presentation of evidence, including the DNA evidence and the jury instructions, [appellant] received effective trial representation and a fair trial”; (2) appellant’s claims regarding his statements to police, DNA evidence, erroneous and prejudicial jury instructions, ineffective assistance of counsel, and lack of jurisdiction were barred as they were raised or should have been raised in the prior direct appeal; and (3) appellant failed to raise a novel claim, in that the legal bases for these claims were available and known at the time of appellant’s direct appeal. The postconviction court also denied appellant’s motion for an evidentiary hearing and his motion for appointment of counsel. In this appeal appellant argues the postconviction court abused its discretion by denying his petition with respect to four of the five grounds for relief argued in his postconviction petition.

We review a postconviction proceeding to determine only whether sufficient evidence exists to support the post-conviction court’s findings and will not disturb the court’s decision absent an abuse of discretion. State v. Rainer, 502 N.W.2d 784, 787 (Minn.1993). A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant reopening a case. Id.

A petition for postconviction relief is a collateral attack on a conviction that enjoys a presumption of regularity. Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000). A postconviction court must hold a hearing on the petition “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2000). Conversely, an evidentiary hearing is necessary “ ‘whenever material facts are in dispute that * * * must be resolved in order to determine the issues raised on the merits.’ ” State v. Rhodes, 627 N.W.2d 74, 86 (Minn.2001) (quoting Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995)). “Thus, appellant must allege facts that would, if proven by a fair preponderance of the evidence, entitle him to relief.” Rhodes, 627 N.W.2d at 86. Any doubts as to whether to conduct an evidentiary hearing should be resolved in favor of the party requesting the hearing. State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).

Once a defendant directly appeals a conviction, all matters raised in that appeal or known at the time of appeal will not be considered by a postconviction court in a subsequent petition for relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); see also Minn.Stat. § 590.04, subd. 3 (2000). This rule applies if the defendant knew or should have known about the issue at the time of appeal. Black v. State, 560 N.W.2d 83, 85 (Minn.1997). Minnesota Statutes § 590.04, subd. 3, provides that a postconviction court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner. Perry v. State, 595 N.W.2d 197, 200 (Minn.1999).

An exception to the Knaffla rule provides that a claim that was known but not raised may be considered “only where a claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken.” Case v. State, 364 N.W.2d 797, 800 (Minn.1985). When there is a postconviction claim of “newly discovered evidence” the petitioner must establish inter aha that the evidence was not known to him or counsel at the time of trial, that the failure to learn of it was not due to “lack of diligence,” and that that the evidence is material and will probably produce a result more favorable to the petitioner. Race v. State, 417 N.W.2d 264, 266 (Minn.1987); cf. Ferguson v. State, 645 N.W.2d 437, 445 (Minn.2002) (concluding that in case where newly-discovered evidence is falsified trial testimony, the traditional requirement that a petitioner be taken by surprise at trial or not have known of the falsity of the testimony until after trial is not an absolute condition precedent for granting a new trial). Finally, even if appellant’s claims are procedurally barred, this court may in the interest of justice address the claims on their merits. See Boitnott v. State, 631 N.W.2d 362, 369-70 (Minn.2001).

I.

We first consider whether the postconviction court abused its discretion by dismissing without an evidentiary hearing appellant’s claim regarding the unreliability of DNA evidence used to convict him. On this issue the postconviction court concluded appellant’s claims were barred under Knaffla. The court concluded that the DNA assertions failed to raise a novel claim, in that the legal bases for each claim was available and known at the time of appellant’s direct appeal.

Appellant specifically alleged to the postconviction court that the testing methods used to match his DNA with samples taken from the body of Lewis were unreliable and therefore should have been suppressed. He characterized as “newly discovered testimonial evidence” his assertions that (1) there was a “mix-up” at the BCA regarding his DNA sample; (2) the BCA did not have a laboratory unit until 1993, one year after his trial; (3) he was never afforded a DNA expert at trial or afterward; (4) the statistical methods used by the BCA to match DNA created inaccurate results; (5) the database used to compare DNA samples and determine the accuracy of the match was neither representative of the general population nor sufficiently random; and (6) the technical process used by the BCA lab to match DNA samples was inaccurate. Appellant also moves this court to order the release of the DNA testing results to him and this court in order to facilitate a full analysis of his claims. Appellant stated that his assertions would be supported by BCA forensic scientist Betty Jane Khreiss, who would testify about a mix-up at the DNA lab, and “Mary —,” who would testify that the BCA did not have a DNA lab until 1993. Appellant also alleged he would make an “offer of proof’ regarding his other claims regarding the DNA evidence. Appellant has provided no evidence — in the form of affidavits or otherwise — to elaborate upon or substantiate his allegations regarding DNA.

According to the state’s response to the postconviction petition, the lab mix-up occurred in 1996 (four years after appellant’s trial) and is unrelated to appellant’s case, and the other claims relating to DNA are “either simply untrue, misstatements of fact, irrelevant to the issue at hand, or most importantly, claims which could have been raised in his direct appeal.” Here the state argues that appellant’s DNA claims fail to satisfy our requirement that “newly discovered evidence” may only be used to grant a new trial if the evidence will probably produce either an acquittal at a retrial or a result more favorable to appellant. See Race v. State, 417 N.W.2d 264, 266 (Minn.1987). Finally the state argues that even without the DNA evidence, the cumulative weight of incriminating evidence introduced at trial — including appellant’s confession to police and others that he killed Lewis and had sex with her around the time she died, testimony from the medical examiner that Lewis had her pants on when some of the stab wounds were inflicted and that semen was deposited after her pants had been removed and that it was “highly suggestive” that Lewis was already dead when the sexual contact occurred, and Spreigl evidence of a similar brutal assault — make it unlikely that a new trial would produce a different result.

We conclude that the rule we enunciated in Knaffla bars most, if not all, of appellant’s DNA assertions because the bases for the claims had to have been known at the time of his direct appeal: namely, his assertion that the BCA did not have a DNA laboratory unit and his assertion that he was never afforded a DNA expert at trial or afterward. Moreover appellant raised a related claim in his first postcon-viction proceeding which was rejected by the postconviction court and this court.

In light of the DNA claims that were or could have been raised on direct appeal and the claims appellant now asserts, we hold that the postconviction court did not abuse its discretion in denying him relief. See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. Even if we were to address appellant’s DNA claims in the interest of justice, see Boitnott, 631 N.W.2d at 369-70, his DNA arguments fail on the merits as well. Appellant has failed to satisfy his burden in providing the court with evidence that would warrant reopening his case. Appellant has offered nothing but his own assertions in support of his theory that testing methodology has advanced so as to cast doubt on the strong 1 in 1 billion match that was testified to by a DNA expert at trial. To warrant an evidentiary hearing a petitioner’s postconviction allegations must be “more than argumentative assertions without factual support.” See Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). Based upon the allegations regarding DNA made by appellant in his petition for postconviction relief, its supporting memorandum, and his appellate brief, the postconviction court did not abuse its discretion in denying appellant relief without a hearing on the grounds relating to DNA evidence.

II.

In appellant’s second ground for postconviction relief he contends that the statute under which he was convicted, Minn.Stat. § 609.185(2), has been rendered unconstitutional by recent federal and state case law, and asserts that the post-conviction court’s refusal to declare the statute unconstitutional constitutes an abuse of discretion. Appellant argues that section 609.185(2) — which defines one type of first-degree murder as causing the death of a person while committing or attempting to commit criminal sexual conduct in the first or second degree' with force or violence — is unconstitutional because it does not require a finding of intent to cause death, and under caselaw decided after his trial, any criminal statute must include an element of intent. He alleges that State v. Orsello, 554 N.W.2d 70, 72 (Minn.1996) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require that a murder statute include the element of intent to cause death. Appellant likewise argues that the jury instructions and verdict form in his case were faulty because they were based upon an unconstitutional statute.

The postconviction court held that appellant’s claim regarding “erroneous and prejudicial jury instructions” would not be considered as it was barred under Knaffla. Apparently this ruling also encompasses appellant’s argument regarding the murder statute.

In any event, Orsello and Apprendi are inapposite to appellant’s constitutional argument. In Apprendi the Supreme Court held due process requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of prior conviction, must be submitted to jury and proved beyond a reasonable doubt. 466 U.S. at 490, 104 S.Ct. 1949. Appellant’s sentence — life in prison for first-degree murder — was not increased beyond the statutory maximum and therefore Apprendi does not apply. In Orsello, we held that specific intent, rather than general intent, was an element of stalking under Minn. Stat. § 609.749 (Supp.1993). Orsello, 554 N.W.2d at 77. After Orsello was issued, the legislature amended the stalking statute to provide that specific intent is not- an element. We fail to see how these cases apply here.

As for appellant’s argument that section 609.185(2) is unconstitutional because it does not require a finding of intent to cause death, appellant correctly notes that due process requires that a criminal state of mind, or a criminal intent, is a necessary element of any crime having its origin in common law. Orsello, 554 N.W.2d at 72. However due process is not offended simply because section 609.185(2) does not require an intent to kill. Section 609.185(2) provides that whoever “causes the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or Violence, either upon or affecting the person or another,” is guilty of murder in the first degree. Minn.Stat. § 609.185(2). Because murder in the first degree while committing criminal sexual conduct with force or violence is a “felony-murder” offense it does not require an intent to kill. On the contrary, felony-murder by definition involves an unintentional killing resulting from the commission of a felony that involves some special danger to human life. State v. Mitjans, 408 N.W.2d 824, 833 (Minn.1987). Here the underlying felony was criminal sexual conduct in the first or second degree with force or violence, offenses that clearly require intentional acts. See Minn.Stat. §§ 609.342-.343 (1990). We conclude that appellant’s argument that the felony-murder statute must contain an intent element is without merit and does not entitle appellant to relief.

III.

In appellant’s third ground for postconviction relief he alleged that his statements to police were involuntary and should have been suppressed at trial. Appellant asserts that he made the statements to the police only after he was physically assaulted by a police officer and that the assault was videotaped. Specifically appellant argued to the postconviction court that the district court was required to view the videotape of his interrogation before ruling on the voluntariness and admissibility of his statements. Here he argues that the postconviction court abused its discretion by summarily dismissing appellant’s claim regarding his statements to police.

The postconviction court ruled that appellant’s claims regarding his statements to police were barred under Knaffla as they were raised or should have been raised on direct appeal or in his first post-conviction petition. We agree. At trial appellant’s defense counsel attempted to suppress the statements on several grounds including that, considering his vulnerable state of mind as a crack cocaine addict, appellant’s will was overborne by interrogation. The court ruled that appellant was cognizant of his rights and the statements were admissible. On direct appeal appellant argued through counsel that the statements should have been suppressed as fruits of an unlawful search, and argued pro se that his statements made after arrest should have been suppressed as they were involuntary and given after appellant “received physical force” and “was told that if he cooperated there would be no more physical force.” This claim was considered and rejected summarily by this court in King I, 513 N.W.2d at 249 (stating “we have considered all of the claims made by defendant, including those in his pro se supplemental brief, and we conclude that he received a fair trial and was properly found guilty of first-degree murder.”). Although in this post-conviction proceeding appellant frames his argument around whether the district court viewed a videotape, his essential contention is that his statements were the result of force and coercion- — an argument we rejected in appellant’s direct appeal. Thus we conclude that under Knaffla the postconviction court acted within its discretion in denying this claim. See also Minn.Stat. § 590.04, subd. 3.

IV.

In appellant’s fourth ground for postconviction relief he alleged that he received ineffective assistance of trial and appellate counsel. The bases for this claim are his trial counsel’s failure to challenge the grand jury indictment, failure to allege appellant had been beaten by police during interrogation, and reference to the trial as a “homicide case” during closing argument, and his appellate counsel’s statement in the appellate brief that appellant was not physically abused or threatened by the police. The postconviction court ruled that his claim was proeedurally barred by Knajfla and that, if the claim was not barred, appellant would not prevail on the merits. We agree.

Appellant raised ineffective assistance of counsel claims twice before. In his direct appeal appellant argued pro se that his trial counsel failed to call three material witnesses to testify. We concluded that we had considered all of the claims made by appellant, including those in his pro se supplemental brief, and concluded that he received a fair trial and was properly found guilty of first-degree murder. King I, 513 N.W.2d at 249. In his first postcon-viction petition, appellant argued that he was denied effective assistance of counsel because his trial counsel did not request a Frye hearing on DNA and because his appellate counsel did not appeal the Frye issue. We held that the trial counsel claim was barred because it was raised and decided in appellant’s direct appeal. King II, 562 N.W.2d at 795. Further, we held that both ineffective assistance of counsel claims failed on their merits. Id. at 795-97.

Although appellant alleges slightly different attorney errors in this postconviction proceeding, he has had two prior opportunities to litigate an ineffective assistance claim as to his trial counsel and one prior opportunity to litigate an ineffective assistance claim as to his appellate counsel. Therefore his petition was properly rejected by the postconviction court. Furthermore appellant has alleged no facts that were not known to him at the time of his direct appeal or first postconviction proceeding. A claim that was known but not raised may be considered only where a claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the appeal was taken. Case, 364 N.W.2d at 800. Appellant’s ineffective assistance of trial and' appellate counsel claims are not novel and their legal bases were reasonable available in the earlier proceedings. Thus appellant’s ineffective assistance claims are procedurally barred.

Affirmed.

      . Appellant's motion to review two issues not included in his appellate brief comes nearly two months after this case appeared on the en banc calendar. In his motion he asserts that he forgot to include the issues in his brief. This reason is insufficient to compel our review and thus the motion is denied. To the extent that in the new issues appellant argues that the district court erroneously instructed the jury on lesser-included offenses, we note that appellant’s trial counsel objected to the inclusion of lesser-included offenses in the jury instructions and thus the issues were known to appellant at the time of his direct appeal. Since appellant did not raise these issues in his direct appeal, further review of these issues is barred. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).

      . The misrepresentation in the affidavit chiefly concerned appellant's alleged confession of the murder to acquaintances. Richard Davis, the father of Lewis's son, told a police investigator that he had heard appellant, while high on crack, admit to another man that appellant killed Lewis. The police tried but failed to contact witnesses that could corroborate Davis's story. The officer did not know Davis but was assured by a colleague that Davis had provided reliable information in the past. Based in part on this information police applied for and obtained the search warrant for appellant's blood. After the warrant was executed the officer learned that in fact Lewis had not heard the admission. However two others heard the admission and one testified to it. We held in King I that the warrant was not invalid because the police did not deliberately or recklessly misrepresent any facts in the warrant affidavit. King I, 513 N.W.2d at 248.

      . In 1997 appellant filed an application for a writ of habeas corpus in United States District Court. A federal magistrate concluded that none of the claims set forth in appellant's application for a writ of habeas corpus — that (1) the state postconviction court violated appellant's Fourteenth Amendment right to due process by not conducting an evidentiary hearing on his postconviction claims, (2) this court had violated his Fourteenth Amendment right to due process by denying his postcon-viction claims without first directing the post-conviction court to conduct an evidentiary hearing, (3) the district court had violated his Fourteenth Amendment right to due process by admitting DNA evidence without first holding a pretrial hearing on the admissibility of the DNA evidence, (4) his conviction had been obtained in violation of his Fifth Amendment right against self-incrimination because the district court had failed to "acknowledge" the videotape recording of the police interrogation before admitting into evidence his statement to the police, (5) his conviction had been obtained in violation of his Fourth Amendment right against unreasonable searches and seizures because the search warrant for a sample of his blood contained misrepresentations, and (6) his conviction had been obtained in violation of the Sixth Amendment right to counsel because he had been denied effective assistance of trial and appellate counsel — had merit and recommended dismissal of appellant's application. According to the state, the federal district court adopted the magistrate’s report in its entirety and dismissed the application with prejudice, and that subsequently the Court of Appeals for the Eighth Circuit denied appellant’s application for a certificate of appealability. The United States Supreme Court denied appellant’s petition for a writ of certiorari. King v. Crist, 528 U.S. 858, 120 S.Ct. 144, 145 L.Ed.2d 122 (1999) (mem.).

      . To prevail on a claim of ineffective assistance of counsel, an appellant must prove that (1) his counsel's representation "fell below an objective standard of reasonableness” and (2) "that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . On appeal appellant did not raise the final claim in his postconviction petition: that the evidence presented at his trial was insufficient to support the jury verdict that the crime occurred in Hennepin County.

      . Appellant alleges that he made several motions to see the DNA results in his case and moves this court to order the Hennepin County Attorney’s Office to release copies of the DNA results to this court and to appellant. No previous motions to release the results appear in the district court file. Given that appellant has offered no evidence of His previous motions, and that a motion for discovery is appropriately addressed to the district court, appellant’s motion is denied.

      . In his first poslconviction proceeding, appellant argued that the district court erred in admitting DNA evidence without first conducting a Frye hearing, and that he was denied effective assistance of counsel because his trial counsel did not request a Frye hearing and because his appellate counsel did not appeal the Fiye issue. King II, 562 N.W.2d at 792. We held that appellant was barred from challenging the credibility of DNA evidence when he failed to move to suppress the evidence at trial and stipulated to the chain of custody of the evidence. Id. at 795.

      . We acknowledge however the difficulty a pro se indigent appellant would have in sufficiently mounting a case that would warrant the re-analysis of DNA evidence. Here the State Public Defender’s office has declined to represent appellant in this matter, appellant’s motion to have postconviction counsel appointed was denied by the postconviction court, and appellant — as an indigent prisoner — -has no means to hire counsel or forensic experts. In the absence of a bare threshold of evidence warranting re-analysis of DNA evidence, we are unable to examine the issue substantively or remand it for hearing.

      . See Act of May 6, 1997, ch. 96, §§ 7, 1997 Minn. Laws 694, 700.

      . We note that the record is silent as to whether the district court reviewed the tape. It does not appear that the tape was introduced into evidence at either the omnibus hearing or the trial. Appellant and his counsel were aware of the videotape in that during the omnibus hearing a police officer testified that the interview was videotaped.


source: Caselaw Access Project

author: ANDERSON, Russell A., Justice.

license: Public Domain

text:
    Ryan Michael PEDERSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C2-01-2136.
    Supreme Court of Minnesota.
    Aug. 1, 2002.

      Deborah K. Ellis, Saint Paul, for Appellant.
    Mike Hatch, Minnesota Attorney General, Saint Paul, Robert M.A. Johnson, Ano-ka County Attorney, Marey S. Crain, Assistant Anoka County Attorney, Anoka County Government Center, Anoka, for Respondent.
   OPINION

ANDERSON, Russell A., Justice.

Ryan Michael Pederson appeals from the order of the Anoka County District Court denying his petition for postconviction relief. The postconviction court denied the petition -without a hearing, adopting verbatim the state’s proposed findings of fact, conclusions of law and order. Out of concern that the process employed here gives the appearance of impropriety, we reverse and remand for reconsideration.

Following a jury trial, Ryan Peder-son was convicted of murder in the first degree, Minn.Stat. § 609.185(3) (1996). Pederson appealed and we affirmed. State v. Pederson, 614 N.W.2d 724, 726 (Minn.2000). The facts and original trial are summarized in detail in that opinion. Ped-erson filed this petition for postconviction relief, asserting, among other things, newly discovered evidence and prosecutorial misconduct in failing to disclose certain evidence, improper vouching and subornation of perjury. Pederson also requested that the Chief Judge of the Tenth District assign the petition to a judge outside of the district since Pederson intended to call the prosecutor, now a judge in the Tenth District, as a witness at the postconviction hearing. The Chief Judge denied Peder-son’s request and assigned the petition to the trial judge, who summarily denied relief. This appeal followed.

The decision whether to grant a new trial based upon newly discovered evidence rests with the court and will not be disturbed unless there is an abuse of discretion. Berry v. State, 364 N.W.2d 795, 796 (Minn.1985) (citing State v. Wofford, 262 Minn. 112, 115, 114 N.W.2d 267, 269-70 (1962)). A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside. Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000) (citing State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968)). A petitioner for postcon-viction relief bears the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief. Minn. Stat. § 590.04, subd. 3 (2000); Gassler v. State, 590 N.W.2d 769, 771 (Minn.1999).

We confine our review to Peder-son’s claim that he was denied procedural due process because the postconviction court adopted verbatim the state’s proposed findings, conclusions and order denying relief. A postconviction court’s verbatim adoption of the state’s proposed findings and conclusions, standing alone, does not constitute grounds for reversal. Dukes v. State, 621 N.W.2d 246, 259 (Minn.2001). But the practice of the verbatim adoption of a party’s proposed findings and conclusions is hardly commendable. Our preference is “for a court to independently develop its own findings.” Id. at 258. The postconviction court has the responsibility for ascertaining the facts. “And it is not a light responsibility since, unless his findings are ‘clearly erroneous,’ no upper court may disturb them. To ascertain the facts is not a mechanical act. It is a difficult art, not a science. It involves skill and judgment.” United States v. Forness, 125 F.2d 928, 942-43 (2d Cir.1942).

Pederson filed his petition for postcon-viction relief, together with documentary evidence and affidavits to support his allegations of serious prosecutorial misconduct, on July 20, 2001. The state filed its response in opposition to the petition on August 30, 2001. The state then sent to the postconviction court proposed findings, conclusions and an order fully exonerating the state by letter dated Friday, October 12, 2001, copy to Pederson’s counsel. The record is silent as to whether the proposal was requested by the court. On Monday, October 15, 2001, the postconviction court adopted verbatim those findings, conclusions and order, without providing Peder-son’s counsel a chance to review the state’s submissions or an opportunity to submit proposed findings, conclusions and an order on Pederson’s behalf.

In considering Pederson’s due process claim, we are mindful that “ ‘justice must satisfy the appearance of justice.’ ” Shorter v. State, 511 N.W.2d 743, 747 (Minn.1994) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954)). With few exceptions not relevant here, a judge does not “initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.” Canon 3(A)(7), Minn. Code Judicial Conduct. “A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.” Id. cmt.

In its capacity “as the neutral factor in the interplay of our adversary system,” the court “is vested with the responsibility to ensure the integrity of all stages of the proceedings. This pervasive responsibility includes avoidance of both the reality and the appearance of any impropriety * * State v. Mims, 306 Minn. 159, 168, 235 N.W.2d 381, 387 (1975). “The impartiality of the trial judge must be beyond question.” Rose v. State, 601 So.2d 1181, 1183 (Fla.1992). Ordinarily, a postconviction court’s findings of fact are afforded great deference on appeal. Dukes, 621 N.W.2d at 251. But such deference ought not attach to a postconviction order exonerating the prosecution of allegations of serious misconduct when that order is predicated ex parte on findings and conclusions drafted by the prosecution. Furthermore, unlike cases in which parties have been given the opportunity to respond to proposed findings and conclusions prior to verbatim adoption, it seems to us that a heightened level of appellate scrutiny would not satisfy the appearance of justice either. Accordingly, in the interests of justice, we reverse the order denying Pederson’s petition for postconviction relief and remand the matter for reconsideration.

To maintain public trust and confidence in the judiciary, judges should avoid the appearance of impropriety and should act to assure that parties have no reason to think their case is not being fairly judged. See McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn.1984). Since Ped-erson’s petition alleges that the trial prosecutor, now a judge in the Tenth District, improperly coached and impeded defense access to a key witness, the Chief Judge may find it preferable to reconsider Peder-son’s request that the matter be referred to a judge outside the Tenth District so as to avoid the appearance of impropriety.

Reversed and remanded.

      . A chief judge does not have the authority to assign a matter outside of the chief judge’s district. If no judge within the district is qualified to hear the matter, the chief judge must notify the chief justice. Minn. R.Crim. P. 26.03, subd. 13(6). The chief justice then assigns a judge of another district to preside over the matter. Id.

      . Pederson based his allegations of misconduct upon a curious trial preparation document, created by the state, that surfaced after his conviction. The document was accompanied by a post-it note that asked the witness to read the document and be "VERY familiar” with it and to read it "several times” before testifying at trial. The slate asserted that the document was nothing more than a condensed form of the grand jury transcripts. We think not. The document transformed conversations related by a key state witness before the grand jury into a scripted version of those conversations, much like the work of a playwright. Without regard to its substance, the document does not, as the state claims, "excerpt” the questions asked of the witness and his complete answers to those questions in his grand jury testimony.

      . Pederson's counsel received the state's proposed findings, conclusions and order on October 15, 2001, and immediately sent a letter to the court requesting an opportunity to also submit proposed findings, conclusions and an order.


author: KATHLEEN A. BLATZ, Chief Justice.

text:
    Gloria LARSON, Respondent, v. ST. LOUIS COUNTY, Self Insured, Relator, and HRI for Medica Choice, Intervenor, and Special Compensation Fund.
    No. C5-02-715.
    Supreme Court of Minnesota.
    Aug. 8, 2002.
    Honorable Donald C. Erickson, Compensation Judge, Office of Administrative Hearings.
    Alan L. Mitchell, St. Louis County Attorney, Timothy O. Lee, Assistant County Attorney, Duluth, MN, for appellant.
    James B. Peterson, Falsani, Balmer, Peterson & Quinn, Duluth, MN, Mike Hatch, Attorney General, Sara J. Stoltman Special Assistant Attorney General, St. Paul, MN, for respondent.
   ORDER

KATHLEEN A. BLATZ, Chief Justice.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed April 10, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

KATHLEEN A. BLATZ

Chief Justice


author: ALAN C. PAGE Associate Justice

text:
    James WALDOCH, Respondent, v. Donnie HISCHER, Uninsured, Employer, Kevin Koecher, Individual d//b/a All Seasons Builders and d/b/a Koecher Enterprises, Uninsured, Employer, Rags to Riches, d/b/a Grayhawk Builders and Auto Owners Group, Relators, Twin Cities Anesthesia Associates, P.A., Regions Hospital, Intervenors, and Special Compensation Fund.
    No. C2-02-686.
    Supreme Court of Minnesota.
    Aug. 8, 2002.
    Kent Charpentier, Koll, Morrison, Char-pentier & Hagstrom, St. Paul, MN, for relator.

      Thomas L. Cummings, Jardine, Logan <& O’Brien, P.L.L.P., Lake Elmo, MN, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed April 1, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

ALAN C. PAGE

Associate Justice


author: BLATZ, Chief Justice. GILBERT, Justice PAGE, Justice

text:
    In the Matter of the CUSTODY OF N.A.K., DOB 4/10/92. Christopher Rodgers, et al., Petitioners, Respondents, v. Robert J. Knauff, Petitioner, Appellant.
    Nos. C3-01-170, C6-01-678.
    Supreme Court of Minnesota.
    Aug. 15, 2002.

      Mark A. Olson, Burnsville, for Appellant.
    Gary A. Debele, Walling <& Berg, P.A., Minneapolis, for Respondents.
    John Remington Graham, Quebec, Canada, for Amicus Curiae R-KIDS of Minnesota.
    Laurie Hanson, Legal Aid Society of Minneapolis, John M. Jerabek, Minneapolis, for Amicus Curiae Minnesota Kinship Caregivers Association.
    Gail Chang Bohr, Children’s Law Center of Minnesota, St. Paul, Lisa Pritchard Bayley, Minneapolis, for Amicus Curiae Children’s Law Center.
   OPINION

BLATZ, Chief Justice.

Appellant Robert Knauff appeals an order awarding custody of his daughter N.A.K. to his deceased ex-wife’s sister and brother-in-law. He argues that the custody order was based on findings unsupported by the record, that the court misapplied the law, and that the order violated his constitutional right to the care, custody and control of his child. The court of appeals affirmed the custody order. We reverse and remand the matter to the district court for further proceedings consistent with this opinion.

N.A.K. was born to appellant Robert Knauff and the now-deceased Renee Mont-petit on April 10, 1992. Upon their divorce in 1994, Knauff and Montpetit were awarded joint legal custody of N.A.K. and Montpetit was awarded sole physical custody. Knauff and Montpetit clashed over financial and access issues, and Montpetit obtained orders for protection against Knauff in Ramsey County. Between 1995 and 1999 Knauff lived in Wisconsin, Ohio, and California, and in 1996 the district court ordered that Knauffs access with N.A.K. be supervised. However, Knauff testified that he never knew of this order and that he cared for N.A.K. at his mother’s home during this time.

In late 1996, Montpetit was diagnosed with a serious heart ailment that resulted in hospitalizations and ultimately a heart transplant. During that time Montpetit’s family, including her sister Robin Rodgers and Robin’s husband Chris Rodgers (the Rodgers), stepped in to help care for Montpetit, N.A.K., and Montpetit’s teenage son from another relationship, Nathan. In March 1998 Montpetit was admitted to a hospital in Rochester, and Montpetit and the Rodgers decided that N.A.K. would live with the Rodgers while Montpetit was in the hospital awaiting a heart transplant.

In June 1998 Montpetit executed a will that stated her wishes as to N.A.K.:

With regard to my minor child [N.A.K.], it is my sincere and firm belief that the natural father Robert J. Knauff is not a fit and proper person to have legal or physical custody. Under no conditions do I want Robert J. Knauff to be the testamentary guardian or conservator of the person or estate of my minor child [N.A.K.], nor do I want Robert J. Knauff to be the custodian, under the Uniform Transfers to Minors Act, of my minor child [N.A.K.], J am stating my wishes in this regard out of love and concern for [N.A.K.] ’s safety and welfare, and in consideration of her best interests, and therefore nominate as testamentary guardian and conservator of the person and estate of [N.A.K.] in the order of priority listed below:
⅜ ⅜ ⅜ ]y[y sister Robin M. Rodgers.
* * * My sister JoyLynn Graf.

In July 1998 Montpetit moved back to the Twin Cities and N.A.K. and her older son Nathan moved back in with her while Montpetit waited to have a heart transplant, which occurred in November 1998. After the transplant, Montpetit remained hospitalized and later became an outpatient in Rochester until the end of February 1999. N.A.K. stayed with the Rodgers during this time; on the weekends members of Montpetit’s family would bring N.A.K. to see Montpetit in Rochester.

During March of 1999 Montpetit’s family began to notice that Montpetit’s moods were volatile. After witnessing Montpet-it’s erratic behavior, Robin Rodgers contacted the Mayo Clinic. Montpetit received psychiatric treatment at the Mayo Clinic in April 1999 and a psychiatrist diagnosed her with “[pjrobable drug induced mania versus bipolar affective disorder.” The Mayo Clinic records also contain a letter from Montpetit’s cardiologist that states Montpetit had shown evidence of hypomanic behavior at a clinic appointment. On May 12, 1999, the Mayo Clinic sent mental health evaluators to visit Montpetit at her home. Montpetit was very upset by this and blamed her family members, believing that they were trying to have her committed and gain custody of N.A.K. Montpetit took N.A.K. from the Rodgers’ home in May 1999 and had N.A.K. live with her.

On June 4, 1999, Montpetit executed another will, which was probated in Ramsey County District Court after Montpet-it’s death. The second will stated:

With regard to my minor child [N.A.K.], if the natural father Robert J. Knauff predeceases me, or otherwise is unable or fails to act as guardian, I nominate [my son Nathan’s father] as the legal guardian of the person and estate of my minor child [N.A.K.],

In late June 1999, Montpetit took N.A.K. to California for a three-week visit, during which they stayed with Knauff. They returned to Minnesota after two weeks — one week earlier than planned.

Almost immediately thereafter Montpet-it became ill, fell into a coma, and died on July 15, 1999. Knauff did not attend the funeral or make contact with N.A.K. at this time. Knauff testified that he was unaware of Montpetit’s death and did not know N.A.K.’s whereabouts. Because of the alleged difficulty in ascertaining N.A.K.’s whereabouts, he hired a private investigator to assist him in finding her. On July 24, 1999, Knauff and the private detective flew to Minnesota to pick N.A.K. up. Accompanied by police they arrived at the Rodgers’ home at approximately 2:00 a.m. After the Rodgers showed the police a copy of the 1996 supervised visitation order, the police decided to leave N.A.K in the custody of the Rodgers.

The next day the Rodgers executed nearly 30 pages of affidavits alleging among other things that Knauff had bipolar affective disorder, had a drug and alcohol problem, had not held a steady job, and had not visited with N.A.K. after the 1996 order except for the California visit before Montpetit’s death.

On July 26, the Rodgers filed a petition for custody of N.A.K., alleging that Knauff had willfully neglected to provide for N.A.K. and that N.A.K. had resided with the Rodgers for the majority of the previous three years. The Rodgers also filed a motion for an ex parte order granting them immediate temporary custody of N.A.K. The court issued the ex parte order, stating that the Rodgers had demonstrated that N.A.K. “has resided with them for a period of twelve months or more,” and that Knauff “has had no contact with the child on a regular basis and has not demonstrated consistent participation in the child’s well-being for more than six months” and “has refused or neglected to comply with the duties imposed upon him by the parent and child relationship” and the divorce decree.

Following the issuance of the ex parte order, the district court held a temporary custody hearing and on October 4, 1999, the district court granted the Rodgers temporary sole legal and sole physical custody of N.A.K., but allowed for access between Knauff and N.A.K. Because the court did not believe the case presented a “close call,” it rejected Knauffs argument that a presumption favoring parents creates an “uneven playing field” favoring parents over third parties in close eases.

In preparation for the permanent custody hearing, the court then appointed a guardian ad litem for N.A.K. and directed the parties to cooperate with the Hennepin County Department of Court Services in completing a custody evaluation. Several evaluations were conducted by various professionals and the following reports were submitted to the court: a custody and visitation evaluation report prepared by Family Court Evaluator Nancy Darcy; a chemical dependency evaluation of Knauff prepared by Steven T. Johnson; and psychological evaluations of Christopher Rodgers, Robin Rodgers, and Robert Knauff, prepared by Paul H. Boerger, Ph.D. In addition, Nancy Darcy referred N.A.K. to Hennepin County psychologist Susan De Vries for an evaluation to obtain information on N.A.K.’s emotional health, her adjustment to her mother’s death, and her attachment to Knauff and the Rodgers. De Vries recommended that N.A.K. begin individual therapy. Based upon that recommendation, the Rodgers selected Leslie Faricy as N.A.K.’s therapist. In turn, while N.A.K. was visiting Knauff in California in April 2000, Knauff brought N.A.K. to a therapist, Robin Walker, who issued a letter indicating that N.A.K. wished to live with her father. This letter from Walker, as well as Dr. Fancy’s report and deposition testimony, were received by the court.

The custody trial began on August 1, 2000. The Rodgers, the guardian ad litem, and several experts provided both testimonial and documentary evidence suggesting that Knauff inappropriately involved N.A.K. in the custody proceedings. Knauff testified that the Rodgers had repeatedly denied him access to N.A.K., that his phone contact with N.A.K. was interfered with, and that his role as N.A.K.’s father was not being incorporated into decisions made for and about N.A.K. Knauff also alleged that N.A.K.’s guardian ad li-tem carried a significant bias against him during this time and was aligned with the Rodgers’ counsel in another matter. The guardian denied any bias and testified at trial that Knauff s behavior was the root of any differences between them.

On August 21, 2000, the district court granted the Rodgers permanent sole legal and physical custody of N.A.K. In doing so, the court made specific findings that corresponded with the factors a court is to consider in determining the best interests of a child, set forth in Minn.Stat. §§ 518.17 and 257.025 (2000), from the “Marriage Dissolution” and “Children; Custody, Legitimacy” chapters, respectively. The “best interests factors” in the statutes include the wishes of the parties or parents; the custodial preference of the child; the child’s primary caretaker; the intimacy of the relationships between the parties and the child; relationships and interactions with siblings and significant others; the child’s adjustment to home, school, and community; stability and continuity; permanence of the proposed custodial home; the mental and physical health of all individuals involved; and the capacity and disposition of the parties to give love and guidance. As a prelude to its application of the best interests factors to the evidence before it, the district court stated:

Unfortunately or fortunately, depending upon one’s perspective, Minnesota trial courts are not permitted to advance a core belief that biological parents should be entitled to custody of their children vis a vis non-biological parents. Instead, trial courts must apply the best interests factors, and when that is done herein, [the Rodgers’] case is an overwhelming one because the vast majority of the best interests factors strongly favor [the Rodgers.]”

In its order and memorandum, the district court found specifically:

(1) it did not “have faith in the integrity of [Montpetit’s] dying wish” as to custody because the evidence “quite clearly depicts * * * a confused and unstable person”;

(2) that it could not determine N.A.K.’s preference because the guardian ad litem would not consent to an interview, but that N.A.K. had expressed conflicting wishes depending on to whom she was talking;

(3) that the Rodgers were N.A.K.’s primary caretakers;

(4) that “[Knauff] has been able to maintain a warm loving relationship with [N.A.K.] despite being out of the state for most of the last four years” and that N.A.K. also has a “very intimate relationship” with Robin Rodgers;

(5) that Chris Rodgers has a strong relationship with N.A.K. and "that N.A.K. has a “significant, strong relationship with her half-brother Nathan.” In addition, while N.A.K. has strong relationships with relatives of both her mother and father, “[o]n balance, the interaction and inter-relationships with [the Rodgers’] relatives and significant others has been far more important and extensive than with [Knauffs] relatives and significant others”;

(6) that “[a]lthough [N.A.K.] has struggled in school, she has made steady improvement in the parochial school chosen by the [Rodgers],” and has numerous close friends in the school and community;

(7) that the Rodgers provided a more stable environment than Knauff and that, according to N.A.K.’s therapist, “[b]ecause of the upheaval in her life, [N.A.K.] is in need of greater security, continuity and structure than most children of her age”;

(8) that the Rodgers offer a very permanent home in terms of physical environment and personal relationships while Knauff had “little to offer of a permanent nature”;

(9) that Robin Rodgers is physically and mentally fit in all respects, that Chris Rodgers is not mentally or physically deficient in any way that could negatively impact N.A.K., and that “significant credible evidence established that [Knauff] does not have a proper understanding of child development,” including evidence that Knauff inappropriately used N.A.K. as a tool in his pursuit of custody;

(10) that the court had concerns regarding Knauffs ability to provide “much needed guidance in the years ahead”;

(11) that “the Court did not come away with the feeling that [Knauff] has the capacity or disposition to exceed Petitioner Robin Rodgers” in terms of providing N.A.K. with love and affection, and that “without hesitation” the Rodgers have “a far greater disposition and capacity to continue raising [N.A.K.] in her current religion”; and

(12) that because of a lack of communication and cooperation, joint custody was not a viable option.

After making its detailed findings of fact, the district court concluded:

This Court is troubled with the prospect of permanently depriving a biological parent of the custody of his child when he is neither unfit nor has a history of abandoning that child (now that the biological, custodial mother has passed on). However, the legislature and higher courts have spoken and they have crafted a best interests test. When that test is applied to the particular facts herein, the result is clear. So many of the best interests factors favor the [Rodgers], some convincingly, that this Court could not award custody to [Knauff] without abusing its discretion.

After issuing its permanent custody order, the district court issued an access schedule providing that Knauffs access would increase over time if he complied with several requirements. The requirements included participating in a twelve-step program, maintaining documentary evidence of at least weekly attendance and contact with a 12-step sponsor every week, commencing a parenting class that would include child development and grief issues, and meeting with the child’s therapist during the first month after the order was issued and then following her recommendations for developing parenting strategies to address N.A.K.’s needs.

Knauff did not fulfill any of the requirements of the access schedule order and filed pro se post-trial motions for a new trial and amended findings. In these motions Knauff raised a constitutional challenge to the decision based on his fundamental right as a parent to the care and custody of N.A.K., arguing that the application of the best interests factors of section 257.025, the “Custody Disputes” statute, are unconstitutional as applied to a fit parent. In support of his argument, Knauff cited Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality decision). The court ruled that Knauffs post-trial motions were untimely and that Knauff failed to give notice to the Attorney General that he was challenging the constitutionality of a statute. The court further concluded that because Knauff failed to articulate this interpretation of Troxel at trial he was barred from raising a new legal theory after trial, and that even if the motion was timely, Troxel did not apply to the case at hand.

Knauff then appealed the district court’s denial of his pro se motion to the court of appeals and went to the media with his story. In turn, the Rodgers and the guardian ad litem moved to have Knauffs access restricted. In February 2001, the district court ordered that until Knauff complied with the order, his access would be supervised but that telephone contact with N.A.K. would be allowed. The court also awarded attorney fees to the Rodgers and revisited the gravamen of Knauffs post-trial motion under Minn. R. Civ. P. 60.02, which was that the court had applied the wrong standard in determining custody of N.A.K. Knauff argued that the court had “applied a ‘simple weight of the evidence’ standard to determine that ‘the best interests of the child * * * would be “better” served’ by [the Rodgers] and by doing so, ignored the presumption that [N.A.K’s] best interests would be served by reposing custody in [Knauff], her natural father.” The court rejected this argument outright, quoting from its permanent custody order and elaborating on its ruling:

This argument misunderstands the Court’s August 2000 decision. Therein the Court acknowledged that, “Caselaw has made it clear that ... the custody inquiry ... [starts] with a preference or presumption in favor of the surviving biological parent.” * * * The Court did not ignore this presumption, apply “a simple weight of the evidence test,” and decide, based on a simple preponderance of the evidence, that [N.A.K.’s] best interests would be better served by placing her with [the Rodgers]. Instead, the Court found that “[the Rodgers’] case is an overwhelming one because the vast majority of the best interests factors strongly favor [the Rodgers].” * * ⅜ The Court even explained that it was “troubled with the prospect of permanently depriving a biological father of the custody of his child when he is neither unfit nor has a history of abandoning the child,” but despite the Court’s own personal distaste for the task, the Court found that the need to award custody to [the Rodgers] was “clear.” It also found that, “So many of the best interest factors favor [the Rodgers], some convincingly, that this Court could not award custody to [Knauff] without abusing its discretion.” In other words, the Court ruled in [the Rodgers’] favor not because they established their case by a simple preponderance of the evidence, or because this * * Court believed [N.A.K.’s] best interests would be better served with the [Rodgers]. Instead, the Court ruled in the [Rodgers’] favor because they provided a clear and convincing case, indeed an “overwhelming” case.

(Citations omitted.) The court further rejected Knauffs suggestion that the court must find that a parent is unfit or has abandoned the child in order to award custody to a third party. Instead, the court recognized that “some other ‘extraordinary circumstances’ may provide the ‘grave reasons’ for denying custody to the surviving natural parent.” Finally, the court also ordered that all parties restrict N.A.K.’s access to the media.

Knauff appealed from the aspect of the order granting attorney fees, and the appeals were consolidated for review. At the court of appeals Knauff argued that the district court’s findings of fact were unsupported by the record, that it misapplied the law regarding the attorney fees, and that the best interests factors set forth in Minn.Stat. §§ 257.025 and 518.17 violate due process as applied to custody disputes between a parent and a third party because the statutes do not adequately protect the right of the parent to raise the child.

On December 11, 2001, the court of appeals affirmed the district court’s decision. The court of appeals concluded that the district court’s findings were supported by the record, and that the court did not abuse its discretion in its custody determination or in awarding attorney fees to the Rodgers. Regarding Knauffs constitutional argument, the court of appeals held that because the district court denied Knauffs post-trial motion on procedural grounds, it was not required to consider Knauffs constitutional challenge. Because Knauff made no claim on appeal that the procedural basis for denial was erroneous, the court of appeals concluded that the constitutional challenge was not properly before the court. We granted Knauffs petition for review.

District courts have broad discretion to determine matters of custody. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn.1989). Appellate review of custody determinations is limited to 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). When determining whether findings are clearly erroneous, an appellate court views the record in the light most favorable to the trial court’s findings. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999) (citation omitted). As a general matter, appellate courts review questions of law de novo. Frost Benco Electric Ass’n v. Minnesota Pub Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

We first examine Knauffs argument that the district court failed to properly incorporate into its analysis a fundamental principle of Minnesota case law, that in custody disputes, a fit parent must be given i superior right to his child over a third party. Knauff essentially argues that the district court here simply placed the parties on a level playing field and awarded custody to the Rodgers because they prevailed on a preponderance of the best interests factors.

We have stated that in a custody dispute between a parent and a third party, two basic doctrines control the decision, with one dominating the other:

The first of these doctrines stands for the proposition that a mother is entitled to the custody of her children unless it clearly appears that she is unfit or has abandoned her right to custody, or unless there are some extraordinary circumstances which would require that she be deprived of custody. The second doctrine is the so-called best-interest-of-the-child concept, according to which the welfare and interest of the child is the primary test to be applied in awarding custody.
* * * *
The principle that the custody of young children is ordinarily best vested in the mother, vital and established as it may be, is distinctly subordinate to the controlling principle that the overriding consideration in custody proceedings is the child’s welfare.

Wallin v. Wallin, 290 Minn. 261, 264-65, 187 N.W.2d 627, 629-30 (1971) (emphasis added). In Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn.1989), we reiterated these principles, stating that the presumption in favor of a parent may be overturned if there are “grave and weighty” reasons to separate a child from his or her natural parent:

“This court has repeatedly held that the right of a parent to custody of their child is paramount and either parent is presumed to be a fit and suitable person to be entrusted with care of child or children born to and belonging to them. The burden of disproving this presumption rests upon those who challenge it.”

Durkin, 442 N.W.2d at 152-53 (quoting In re Klugman, 256 Minn. 113, 97 N.W.2d 425, 428-29 (1959)). The court went on to identify ways in which the parental presumption could be overcome:

The natural parent is entitled, as a matter of law, to custody of a minor child unless “there has been established on the [parent’s] part neglect, abandonment, incapacity, moral delinquency, instability of character or inability to furnish the child with needed care, * * * or unless it has been established that such custody otherwise would not be in the best interest of the child.” Wallin, 290 Minn. at 266, 187 N.W.2d at 680. Although the presumption favors appellant, it may be overturned if there are “grave and weighty” reasons to separate a child from his or her natural parents. Id.

Durkin, 442 N.W.2d at 152-53.

Further, in In Re Hohmann, 255 Minn. 165, 95 N.W.2d 643 (1959), we expressed the rule of law that operates for a custody dispute occurring after a custodial parent dies.

A provision of a divorce decree awarding custody of a minor child to one of the parents determines only that the welfare of the child, under the circumstances then existing, will best be served, while both parents are living, by suspending the custodial rights of one parent and placing the child into the custody of another. As an adjudication of custodial rights a divorce decree is conditioned upon the continued life of both parents, and when the custodial parent dies, the decree eo instante ceases to be operative and the custodial rights of the surviving parent are reinstated as if no decree of divorce had ever been entered. It follows, and this is in accord with the majority rule which is adhered to in this jurisdiction, that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving natural parent unless it be shown in an appropriate proceeding (1) that he is unfit, (2) that he has forfeited his custodial right as by abandonment, or (3) that irrespective of his fitness, exceptional circumstances indicate that the best interests of the child clearly require that the surviving parent be denied custody. Although the right of a parent to the care and custody of his minor child is paramount and superior to the right of a third person, that right must always yield to the best interest of the child.

Id. at 168-69, 95 N.W.2d at 646-47 (emphasis in original; footnotes omitted).

Hohmann’s language sets forth the rule later articulated in Wallin, providing that “exceptional circumstances” can overcome the superior custody rights of a parent. Hohmann, 255 Minn. at 169, 95 N.W.2d at 647. Furthermore, in Hohmann we stated that the parental preference must be viewed in context of the parent’s parenting in the past. “The weight to be given to the promise of future right treatment arising out of the blood relationship of parent and child varies according to the surviving parent’s past record of fidelity in meeting his parental obligations.” Id. at 170, 95 N.W.2d at 647.

Thus, the cases make clear that ultimately the welfare of the child is the umbrella under which every aspect of custody decisions — including the parental presumption — falls. Within the reach of this over-arching concern is our recognition that the presumption favoring the surviving parent can be overcome only by evidence evincing the existence of extraordinary circumstances of a grave and weighty nature showing that the best interests of the child require that the surviving parent be denied custody. See Wallin, 290 Minn. at 264, 187 N.W.2d at 629. Accordingly, we conclude that following the death of a custodial parent, a surviving, noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature, indicating that the best interests of the child require that the surviving parent be denied custody.

Having reached this conclusion, the question before us is whether the district court properly heeded these principles in its August 21, 2000, order and post-trial rulings. The district court’s rulings in this case reveal that the district court responsibly undertook the great and difficult task of determining custody in this very contentious case. Nonetheless, the findings and conclusions do not clearly reflect a proper incorporation of the parental presumption into the court’s analysis. While we recognize that in its post-trial order the court strongly rejected Knauffs contentions that the court applied a preponderance-of-the-evidence standard and that the evidence is not overwhelmingly in favor of granting custody to the Rodgers, we are troubled by several statements made by the district court. Specifically, we believe the following statements in the August 21, 2000, order do not properly interpret the precedent of our court recognizing the presumption favoring a surviving parent — or, at best, inject a level of confusion as to the standard to be applied in such an important matter:

In some Uniform Parentage Act States, like Montana, the legislature has provided for an easy transition by legislating that surviving non-custodial parents such as [Knauff] become the immediate custodians of their children upon the death of the custodial parent. The Minnesota legislature and appellate courts have chosen another route and require the trial court to apply a best interest test to determine the preferred custodian. See Minnesota Statutes chapter 257 and In Re Custody of N.M.O., 399 N.W.2d 700 (Minn.App.1987). ⅜ * * Unfortunately or fortunately, depending upon one’s perspective, Minnesota trial courts are not permitted to advance a core belief that biological parents should be entitled to custody of their children vis a vis non-biological parents. Instead, trial courts must apply the best interests factors, and when that is done herein, [the Rodgers’] case is an overwhelming one because the vast majority of the best interests factors strongly favor [the Rodgers].

In other portions of the order, the district court correctly acknowledged that the welfare of the child is paramount but the court appears to have elevated tallies of the best interests factors to a degree suggesting that the sheer number of such factors, without more, can mathematically erase the presumption favoring a parent. While the best interests analysis can be very helpful in illuminating the reasoning of the district court, the essential question to be answered by the court is whether extraordinary circumstances of a grave and weighty nature exist to support the grant of permanent custody to a third party and not to a surviving parent. To that end, we agree with the district court that the law does not require that the court find that the parent is unfit or has abandoned the child in order to find extraordinary circumstances. Indeed, the fitness of a parent may not be at issue at all. See Hohmann, 255 Minn. at 170, 95 N.W.2d at 647. Instead what may be of concern are extraordinary circumstances such as the special needs of the child that dictate conferring custody on individuals most able to care for the child. This principle was applied in Durkin, where there was no specific finding that the mother was unfit, and the court recognized that at least one expert determined that bonding had occurred between the mother and child. 442 N.W.2d at 153. Nonetheless custody was awarded to the third party, in part, because experts testified that returning the child to her natural mother would be “extremely detrimental and result in severe emotional and behavioral regression.” Id.

In the instant case, the district court appears to implicitly conclude in its February 14, 2001 post-trial order that an “overwhelming case” of best interests factors favoring a third party over a parent constitutes extraordinary circumstances justifying an award of custody to the nonparent. While the law does not require that the district court use the words “extraordinary circumstances” or “grave and weighty reasons” in its conclusions of law where it awards custody to a nonparent, we cannot affirm the court’s custody award when other language in the court’s order seems to misapprehend our case law. While the district court may ultimately conclude such grave and weighty reasons exist to support awarding custody to the Rodgers, it must do so within the principled framework set forth in our decisions. Therefore, we hold that the court erred. Accordingly, we remand this case to the district court for further proceedings to determine whether extraordinary circumstances of a grave and weighty nature exist here to overcome the presumption in favor of the parent. When making such a determination the court’s findings of fact and conclusions of law must clearly take into account that the right of a parent to custody is “paramount and superior to a third person,” but “must always yield to the best interest of the child” when such extraordinary circumstances exist. Hohmann, 255 Minn. at 170, 95 N.W.2d at 647.

Reversed and remanded.

MEYER, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this ease.

Concurring in part and dissenting in part, GILBERT, J. and PAGE, J.

GILBERT, Justice

(concurring in part and dissenting in part).

I concur with most of the majority’s legal analysis, but would reverse the district court outright and end this protracted litigation at this time. Not only did appellant have the right to joint legal custody of his daughter before his ex-wife died, but he automatically retained the right to sole legal and physical custody of his daughter upon his ex-wife’s death. See In re Hohmann, 255 Minn. 165, 168-169, 95 N.W.2d 643, 646-47 (1959). There is nothing in the record to support altering appellant’s right to have custody of his daughter.

The paramount need is for this child to be with her natural father. A natural father has a fundamental liberty interest in the care, custody, and management of his child, and this interest does not evaporate simply because the natural father has not been a model parent. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Rather, in order to deprive a father of this natural right, a third person must show that there are “grave and weighty” reasons justifying such a deprivation, such as neglect, abandonment, incapacity, moral delinquency, instability of character, inability to furnish the child with needed care, or unless it has been established that such custody would not be in the best interest and welfare of the child. Durkin v. Hinich, 442 N.W.2d 148, 152-53 (Minn.1989); see also Wallin v. Wallin, 290 Minn. 261, 265, 187 N.W.2d 627, 630 (1971). There simply are no extraordinary circumstances of a grave and weighty nature to justify transferring custody from appellant to his former sister-in-law and brother-in-law. The extraordinary circumstances may be the fact that this case has taken as long as it has and has gotten as far as it has.

Neither Durkin nor Wallin, or the cases from which the Wallin court derived the “best interest” language, imply that a third party’s ability to provide for the “interest and welfare” of a child can trump a biological parent’s fundamental interest in parenthood. See Wallin, 290 Minn. at 266, 187 N.W.2d at 630 (citing Fish v. Fish, 280 Minn. 316, 159 N.W.2d 271 (1968), and Aske v. Aske, 233 Minn. 540, 47 N.W.2d 417 (1951)). In Durkin, the biological parent had abandoned her child to the third party who was ultimately awarded custody, and there was expert testimony indicating that “returning [the child] to her natural mother would be extremely detrimental and result in severe emotional and behavioral regression.” 442 N.W.2d at 148, 153. In Wallin, by contrast, we noted: “the evidence did not establish neglect, abandonment, incapacity, moral delinquency, or instability of character on the part of the mother * ⅜ 290 Minn. at 266, 187 N.W.2d at 630. While we noted that the record did not “clearly establish what disposition would be in the best welfare and interest of the child,” we did not suggest that such evidence, without more, could support severing a biological parent’s custodial rights in favor of a third party. Id. at 266-67, 187 N.W.2d at 630-31. The cases cited in Wallin, Fish, and Aske are particularly instructive on this point because they concerned custody disputes between biological parents in the days when there was a rebuttable presumption that the biological mother should be awarded custody. See Fish, 280 Minn. at 320, 159 N.W.2d at 274; Aske, 233 Minn, at 541-42, 47 N.W.2d at 418.

While it is true that the court stated in Hohmann that there may be circumstances where, “irrespective of his fitness, exceptional circumstances indicate that the best interests of the child clearly require that the surviving parent be denied custody,” 255 Minn. at 169, 95 N.W.2d at 647, the cases relied on by the Hohmann court for that proposition did not actually grant custody to third parties, see State ex rel. Gravelle v. Rensch, 230 Minn. 160, 166, 40 N.W.2d 881, 884 (1950); State v. Markson, 187 Minn. 176, 179, 244 N.W. 687, 688 (1932); State ex rel. Merritt v. Eldred, 225 Minn. 72, 76, 29 N.W.2d 479, 481 (Minn.1947)- even when the third parties were in much better financial circumstances to provide for the child, see Markson, 187 Minn. at 179, 244 N.W. at 688.

The Hohmann court clearly contemplated circumstances where a biological parent could be unfit for custody or would waive the right to custody by abandoning a child, but its best interest analysis was narrowly focused on the “exceptional circumstances” where a child has been in the long-term custody of a third party and wishes to remain there in the face of their biological parent’s attempt to gain custody. 255 Minn. at 169-73, 95 N.W.2d at 647-49. Regardless of the broad language in Hoh-mann, neither its analysis nor similar anal-yses in Durkin or Wallin support the conclusion reached by the majority. In other words, unless the surviving biological parent is unable or has been unwilling to serve the best interest of the child, the right of that parent to the care and custody of his minor child is paramount and superior to the right of a third person. See Durkin, 442 N.W.2d at 153; Wallin, 290 Minn. at 266, 187 N.W.2d at 630; Hohmann, 255 Minn. at 169, 95 N.W.2d at 647.

Appellant has been thwarted from exercising his parental rights and responsibilities, including the time period from July 15, 1999, to July 26, 1999, when the respondents had absolutely no right to take custody of N.A.K. after the mother’s death without first trying to obtain court approval. Similarly, the district court had no authority to ratify respondents’ decision to take custody of N.A.K. by granting their request for sole legal and physical custody, stripping these rights from the natural father. By the district court’s own findings of fact in its October 4, 1999, temporary order, appellant “maintained an intimate relationship with [N.A.K.] and videotapes of appellant with N.A.K. demonstrated a “significant degree of intimacy between [them].” The court also found that appellant had “demonstrated through videotapes a strong disposition to provide [N.A.K.] with affection. The tapes also demonstrate that [N.A.K.] feels comfortable in his presence.”

The district court’s August 21, 2000, permanent order found, “There is no doubt that * * * [N.A.K.] loves her father deeply. There is also no doubt that [appellant] loves [N.A.K.] deeply and wants to step in as her father and take over her care.” Later in that same order the court said, “[appellant] never abandoned her and * * * the facts do not suggest that he is ‘unfit’ to parent.” The court went on to state, “[T]he court is convinced that [appellant] has been able to maintain a warm loving relationship with [N.A.K.] despite being out of the state for most of the last four years,” and, “[T]he court has no doubt that [appellant] will be equal to [respondents] in providing [N.A.K.] with love and affection.” The court even conceded that it was “troubled with the prospect of permanently depriving a biological parent of the custody of his child when he is neither unfit nor has a history of abandoning that child (now that the biological, custodial mother has passed on).” The district court used a combination of marital dissolution and custody dispute statutes to reach a result that the court itself recognized as having the effect of “permanently depriving a biological parent of the custody of his child,” effectively terminating appellant’s parental rights. How these factual findings can add up to “grave and weighty” reasons to deprive appellant his entitlement, as a matter of law, to maintain custody of N.A.K. is beyond comprehension.

I also believe the district court erred in not exercising its inherent power to decide what evidence should be considered in its courtroom when both appellant and respondent agreed to an in camera interview of the minor child. The guardian’s preference not to have an interview should always be considered. However, that preference does not dictate what a judge can do, nor can the legislature infringe on judges’ inherent powers on evidentiary matters.

The evidence is at best inconclusive. We have long held that a natural parent is entitled, as a matter of law, to custody of a minor child unless there has been established on the parent’s part neglect, abandonment, incapacity, moral delinquency, instability of character or inability to furnish the child with needed care. Durkin, 442 N.W.2d at 152-53. None of these factors were present here. In fact, the district court’s findings indicate that appellant loved his daughter, that he was not unfit, and that he had neither neglected nor abandoned her. Despite these findings, the court relied on other factors that were, at best, subjective and primarily economically biased.

Accordingly, I would reverse the district court outright and order judgment in favor of the appellant here and now.

PAGE, Justice

(concurring in part and dissenting in part).

I join in the concurrence and dissent of Justice GILBERT.

      . We grant the Rodgers' motion to strike portions of Knauff’s brief referring to probate proceedings as outside the record under Minn. R. Civ.App. P. 110.01.

      . With respect to Rnauff’s explanation of his lack of involvement with N.A.K. at the time of Montpetit’s death, the district court found that Knauff "totally lacked credibility when he attempted to explain his alleged difficulty in locating [N.A.K.] after [Montpetit’s] death, as well as his difficulty in finding out details regarding [Montpetit’s] declining health and funeral arrangements."

      . The district court later denied Knauff’s motion to remove the guardian ad litem, stating that "[a]fter observing [the guardian] in chambers and in court and after reading her written submissions, the Court came away with the distinct impression that, on an overall basis, [the guardian] did an admirable job on [N.A.K.'s] behalf.”
      We deny the Rodgers’ motion to supplement the record with a report from the guardian ad litem program responding to a complaint Knauff made alleging N.A.K.’s guardian was biased against him. The report is outside the record under Minn. R. Civ.App. P. 110.01

      . The best interests factors of Minn.Stat. § 518.17 and Minn.Stat. § 257.025 contain only two minor differences. First, section 518.17 includes as a factor the wishes of the parents, and section 257.025 includes as a factor the wishes of the parties. Second, section 518.17 includes as a factor "except in cases in which a finding of domestic abuse ⅜ ⅜ * has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.” Section 257.025 lacks a comparable factor.

      . The district court noted that the guardian ad litem would not waive her right to be present at an in camera interview of N.A.K., citing Minn.Stat. § 518.166 (2000), and that the guardian further argued that any interview was not in N.A.K.’s best interest. The court stated that without the guardian's waiver, the court could not and would not engage in an in camera review.

      . In Troxel, the Court addressed a Washington statute that provided that any person may petition the court for visitation at any time, and that the court may order visitation rights for any person when visitation may serve the best interests of the child. 530 U.S. at 61, 120 S.Ct. 2054. The Court in a plurality decision held that the statute violated the substantive due process rights of the mother as applied to permit paternal grandparents to obtain increased court-ordered visitation following the death of the children's father-visitation in excess of what the mother thought appropriate. Id. at 72-73, 120 S.Ct. 2054. The district court’s order was based solely on the court's disagreement with the mother as1 to whether children would benefit from such increased visitation. Id. at 68-70, 120 S.Ct. 2054. The Supreme Court's holding was based in part on the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Id. at 65-66, 120 S.Ct. 2054.

      . Minn. R. Civ. P. 60.02 provides that a court may set aside a judgment if the moving party establishes that mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, or any other reason justifies relief from the judgment.

      . Wallin involved a mother's right to custody of her daughter as opposed to a third party. The custody rights of the father were not at issue.

      . The dissent ignores this critical point in its exclusive focus on what it views as the fitness of the father. Our precedent has made it clear that the "extraordinary circumstances” may relate to a child’s special needs and is an exception to the presumption separate from abandonment or unfitness. Hohmann, 255 Minn. at 168-69, 95 N.W.2d at 646-47 (holding that under a divorce decree the right to custody automatically inures to the surviving natural parent unless it be shown "(1) that he is unfit, (2) that he has forfeited his custodial right as by abandonment, or (3) that irrespective of his fitness, exceptional circumstances indicate that the best interests of the child clearly require that the surviving parent be denied custody ”) (emphasis added; footnotes omitted).

      . We do not address Knauff’s argument that custody should have been determined under the custody modification statute, Minn.Stat. § 518.18 (1998), because he did not raise the issue in district court or in the court of appeals. Because the issue was not presented below, Rnauff is barred from raising the issue on appeal, see Thiele v. Stick, 425, N.W.2d 580, 582 (Minn.1988), or on remand, Sigurdson v. Isanti County, 448 N.W.2d 62, 66 (Minn.1989). Nevertheless, we have concerns regarding the appropriateness of proceeding under Chapter 518 where one party to the marital dissolution decree is deceased and a third party is now involved.
      The Rodgers also assert that Knauff's constitutional arguments are similarly barred due to his failure to raise them below. While the record is not a model of clarity, given our remand Knauff may present his constitutional arguments to the district court for consideration on the merits.

      . Because the district court judge that presided over the original custody trial has since recused himself from this case, a new custody hearing is necessary in order for the currently assigned judge to make new findings of fact. We deny the Rodgers' motion to supplement the record with the recusal order, as the order is already part of the record below.