Justia Family Law Opinion Summaries

David Hughes and Dana Waters were in a relationship beginning in 2016 while living in Washington. During their relationship, Hughes raised Waters’s son, C.H., as his own, and later they had another son, D.H. Following their separation, they shared custody on a rotating basis. Hughes moved to North Dakota in late 2020, and the children visited him there during holidays and summers. In April 2023, Waters moved with the children to California. That summer, Hughes flew the children to North Dakota for vacation and later informed Waters he would not return them, citing concerns for their safety.After Hughes’s decision to keep the children, both parties initiated legal proceedings: Waters filed a complaint in California on August 9, 2023, but did not serve Hughes until October 20, 2023. Hughes began a child custody action in North Dakota by serving Waters on August 30, 2023. The California court issued ex parte orders for the return of the children, first claiming emergency jurisdiction, then issuing a non-temporary order, both before Hughes was served. The North Dakota District Court of McKenzie County held a hearing, invited arguments on jurisdiction, and communicated with the California court. Eventually, California transferred its case to Washington, although there was no evidence of a pending Washington action.The Supreme Court of North Dakota reviewed whether the district court properly exercised jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The court held that neither California nor North Dakota was the children’s “home state,” and no other state had a pending child custody action or declined jurisdiction. North Dakota properly assumed jurisdiction under N.D.C.C. § 14-14.1-12(1)(d). The court affirmed the district court’s order granting primary residential responsibility of D.H. and C.H. to Hughes and rejected Waters’s additional challenges. View "Hughes v. Waters" on Justia Law

Ashley Cull and Andrew Cull were married in 2013 and have two children, born in 2016 and 2019. After initiating a divorce in 2021, a stipulated judgment was entered in January 2022, with Andrew awarded primary residential responsibility for the children. An amended judgment in March 2022 reaffirmed this arrangement. In February 2025, Ashley filed a motion to modify primary residential responsibility, arguing that material changes had occurred since the prior order which warranted a shift in custody to her. She submitted declarations from herself and her parents, alleging that Andrew delegated parenting to his mother, lacked routine in his home, and made unsafe decisions affecting the children.The Northeast Judicial District Court, Pembina County, reviewed Ashley’s motion and supporting documents, along with Andrew’s fourteen counter-declarations. The district court denied Ashley’s motion, concluding that she failed to establish a prima facie case under N.D.C.C. § 14-09-06.6, as there was no material change in circumstances nor evidence that modification was necessary to serve the children’s best interests. The court found much of Ashley’s evidence was not based on firsthand knowledge or was not competent, and that extended family involvement and Andrew’s occupation as a farmer were known factors at the time of the original custody determination.The Supreme Court of the State of North Dakota reviewed the district court’s order de novo. It held that Ashley Cull did not provide competent evidence of a material change in circumstances or show that modification was necessary for the children's best interests. The Supreme Court affirmed the district court’s denial of the motion to modify primary residential responsibility, concluding that the statutory requirements for a prima facie case were not met. View "Cull v. Cull" on Justia Law

Kyle Wardner and Tamara Porath were the parents of a minor child, E.M.M.W., who was born in 2017 while the parents resided in different countries—Wardner in North Dakota and Tamara Porath in Canada. After Tamara Porath’s death in November 2020, her sister, Rebecca Porath, sought legal guardianship of the child in Canada. Wardner opposed the application, and the Canadian court ultimately awarded him primary residential responsibility for E.M.M.W., who then moved to North Dakota. In May 2022, both parties stipulated to a final Canadian order that established Wardner’s custody and the Poraths’ visitation rights. Wardner registered this order in North Dakota in May 2024.Subsequently, Wardner filed a motion in the District Court of McLean County, South Central Judicial District, seeking to modify the Canadian visitation order. After a hearing in January 2025, during which both sides testified, the district court denied Wardner’s motion. The court found that Wardner had not demonstrated a material change in circumstances required for modification under N.D.C.C. § 14-09-06.6, the statute it applied to the case. The Poraths also argued that the district court lacked jurisdiction but conceded North Dakota was the child’s home state.On appeal, the Supreme Court of North Dakota held that the district court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and that it erred by applying the wrong statutory standard. The Supreme Court determined that N.D.C.C. § 14-09.4-14, governing modification of nonparent visitation, was the correct statute to apply to Wardner’s motion, rather than the statute for modifying primary residential responsibility. The Supreme Court reversed the district court’s order and remanded the case with instructions for further proceedings under the proper law. View "Wardner v. Porath" on Justia Law

Evan Markestad and Joy Markestad, who divorced in early 2023, share two minor children. Joy was awarded primary residential responsibility, while Evan received parenting time. In summer 2024, Evan agreed that Joy and the children could temporarily reside in Bismarck. Joy later decided to remain in Bismarck permanently and enrolled the children in school there. In March 2025, Evan moved to modify parenting time due to the changed circumstances. Joy partially agreed, asking the district court to alter the school-year schedule but not the summer and holiday arrangements. The district court held a hearing and issued an order and amended judgment modifying parenting time.In the District Court of Ramsey County, Northeast Judicial District, the court examined both parties’ proposals for summer parenting time. Evan requested the entire summer, whereas Joy proposed alternating weekends and two additional weeks. The court considered their respective work schedules, finding Joy, as a teacher with summers off, more available and able to transport the children. The court also considered Evan’s farming obligations, noting his work frequently interrupted the prior parenting schedule. The court ultimately awarded Evan two consecutive weeks in July, Father’s Day, and an additional two-week vacation period, rather than adopting either party’s full proposal. The court also considered the conduct of both parties, including Joy’s lack of candor regarding her move and Evan’s demeaning language, but concluded the record supported its findings.The Supreme Court of North Dakota reviewed the district court’s decision under the clearly erroneous standard and affirmed both the order modifying parenting time and the amended judgment. The Supreme Court held that the district court did not misapply the law or prioritize Joy’s wishes over the children’s best interests, and its findings were supported by the record. Requests for attorney’s fees by both parties were denied, and the Supreme Court found the appeal was not frivolous. View "Markestad v. Markestad" on Justia Law

The case involves a parent, D.A.D., whose parental rights regarding his child, G.M.H., were challenged following a period of incarceration. D.A.D. and the child’s mother, K.R.H., separated in June 2022. Shortly after, D.A.D. was arrested and later convicted of possessing child pornography, resulting in nearly three years of incarceration. During his imprisonment, D.A.D. made limited attempts to communicate with G.M.H., sending only a few letters and making a small number of phone calls. The divorce judgment provided for supervised parenting time after his release, contingent on D.A.D. providing specific information to K.R.H., which he failed to do.A petition for termination of parental rights and for adoption was filed by K.R.H. and her spouse, D.A.H., in April 2025. The District Court of Grand Forks County, Northeast Central Judicial District, held a hearing and found by clear and convincing evidence that D.A.D. had abandoned G.M.H. and that his conduct, faults, and neglect justified termination of his parental rights. The court cited his lack of meaningful contact and support, both before and during his incarceration, and concluded that there was no reasonable expectation his behavior would change.On appeal, the Supreme Court of North Dakota reviewed the district court’s factual findings for clear error and its discretionary decision for abuse of discretion. The Supreme Court held that the district court’s finding of abandonment was supported by the evidence and not clearly erroneous. The court also determined that the statutory definition of abandonment, as applied, did not violate D.A.D.’s constitutional rights, as it required consideration of whether failures to communicate or support were without justifiable cause, including incarceration. The order terminating D.A.D.’s parental rights was affirmed. View "Adoption of G.M.H." on Justia Law

Kolstad and Claussen are the unmarried parents of two minor children, having lived together for about four years before separating in early 2024. Claussen also has primary residential responsibility for a child from a previous marriage. After their separation, Kolstad initiated a legal action seeking primary residential responsibility and child support for their two children, while Claussen counterclaimed for the same relief. The district court held a bench trial in October 2024, during which Claussen requested either primary or equal residential responsibility.Following the trial, the District Court of Ward County, North Central Judicial District, awarded Kolstad and Claussen equal residential responsibility for their children and ordered Claussen to pay Kolstad $157 per month in child support. The district court found that Claussen’s change in employment was motivated by a desire to parent his children and not to reduce his child support obligation. Kolstad appealed, arguing that the district court failed to make adequate findings regarding two statutory best interest factors: the developmental needs of the children and evidence of domestic violence.The Supreme Court of North Dakota reviewed the case and applied the clearly erroneous standard to the district court’s factual findings. The Supreme Court affirmed the district court’s determination that Claussen’s employment change was not intended to reduce his child support obligation. However, the Supreme Court reversed the judgment in part, finding that the district court did not make sufficient findings or provide adequate explanation regarding best interest factors (c) (the children’s developmental needs and the parents’ ability to meet those needs) and (j) (evidence of domestic violence). The Supreme Court remanded the case for further findings and clarification on those factors, instructing the district court to explain its reasoning and to clarify whether the statutory presumption regarding domestic violence applies. View "Kolstad v. Claussen" on Justia Law

The case involves two parents, Staiger and Johnson, who were never married but share one minor child. The original judgment awarded primary residential responsibility to Johnson, with Staiger receiving scheduled parenting time. Following Johnson’s DUI arrest—during which the child was present—Staiger sought to obtain primary residential responsibility, or alternatively, equal parenting time and joint decision-making. Staiger also requested modifications to safety measures in the parenting plan and the removal of certain alcohol testing requirements for himself. Johnson, as a result of her DUI, was required to participate in a sobriety program and begin mental health services.Previously, the District Court of Morton County, South Central Judicial District, modified the parenting plan to include a graduated visitation schedule for Staiger, alcohol testing requirements, and behavioral conditions. Upon Johnson’s DUI conviction, Staiger moved for further modification. The district court found that Johnson’s DUI incident did not constitute a material change in circumstances warranting a change in primary residential responsibility, noting there was no evidence the child was harmed or suffered a decline in welfare. The court did, however, modify the parenting plan to add alcohol and mental health restrictions for Johnson and removed one of Staiger’s alcohol testing requirements. Staiger’s subsequent motions for reconsideration and clarification were denied.On appeal, the Supreme Court of North Dakota reviewed the district court’s findings under the clearly erroneous standard. The Supreme Court affirmed the district court’s determination that Johnson’s DUI did not rise to the level of a material change in circumstances affecting the child’s welfare, and that the modifications to the parenting plan were supported by the record. The Supreme Court also upheld the denial of Staiger’s motions for reconsideration and clarification, finding no abuse of discretion. Johnson’s request for attorney’s fees was denied. The district court’s second amended judgment and related orders were affirmed. View "Johnson v. Staiger" on Justia Law

After the divorce of a couple who had three children—two minors and one adult—a parenting plan was established. Several years later, the father moved for contempt, alleging that the mother prevented his relationship and communication with the children, in violation of the parenting plan. The mother responded by seeking a modification of parenting time and requested a mental examination of the father, citing concerns about his behavior toward the children. She submitted affidavits from herself and their children, which described the father's angry outbursts and alleged emotional mistreatment.The District Court of Cass County, East Central Judicial District, denied the father’s motion for contempt, reduced his parenting time, and ordered a mental examination under N.D.R.Civ.P. 35, with the father responsible for the costs of both the examination and supervised parenting sessions. The court also admitted the children’s affidavits into evidence over the father's hearsay objection. The court’s order delegated authority to a therapist to determine the progression of the father’s “stepped” parenting plan, allowing the therapist to control when and how parenting time would increase.On appeal, the North Dakota Supreme Court found that while the admission of the children’s affidavits was an abuse of discretion, it was harmless error because their live testimony provided similar evidence. The Supreme Court affirmed the findings that a material change of circumstances justified modifying parenting time, upheld the requirement for a mental examination at the father's expense, and found no abuse of discretion in denying contempt against the mother. However, it reversed the delegation of decision-making authority to the therapist regarding progression in the parenting plan, holding that such delegation was improper, and remanded for a court-supervised plan. The court also partially granted the mother’s motion to strike portions of the father’s appellate brief and imposed double costs against him. View "Boyda v. Boyda" on Justia Law

The parties, who share two children, divorced in 2022 and initially agreed to share residential responsibility on a week-on, week-off basis. After their divorce, Ashlyn Clemenson moved to Bottineau and began living with her boyfriend and the children’s half-sibling. The parties later stipulated to an amended judgment to reflect changes in income and child support, maintaining equal residential responsibility. In July 2024, Cole Clemenson moved to modify residential responsibility, seeking primary custody of the children, while Ashlyn Clemenson filed a cross-motion for primary residential responsibility. Both parties agreed that Ashlyn’s relocation constituted a material change in circumstances, and a two-day trial was held in January 2025.The District Court of McHenry County, Northeast Judicial District, found that Cole Clemenson had a history of domestic violence, including incidents in 2013 and 2021, and concluded that the presumption against awarding residential responsibility to a parent who has perpetrated domestic violence under N.D.C.C. § 14-09-06.2(1)(j) applied. The district court designated Ashlyn Clemenson as the primary residential parent, granting Cole Clemenson parenting time on alternating weekends and weekly during the summer. Cole Clemenson appealed, challenging the application of the domestic violence presumption, the findings regarding serious bodily injury, the court’s weighing of best interest factors, and the sufficiency of the district court’s findings.The Supreme Court of North Dakota reviewed the district court’s findings for clear error. It held that the domestic violence presumption in N.D.C.C. § 14-09-06.2(1)(j) applies even when the parent previously shared equal residential responsibility and does not require serious bodily injury to be proximate to the proceeding. The Supreme Court determined that the district court did not clearly err in its findings or in weighing the best interest factors, and affirmed the amended judgment designating Ashlyn Clemenson as the primary residential parent. The request for attorney’s fees was denied. View "Clemenson v. Clemenson" on Justia Law

The parties in this case were in a long-term relationship and had two children together. During the relationship, the mother was a stay-at-home caregiver while the father was the sole wage earner. After their separation, the father initiated legal proceedings to determine residential responsibility, parenting time, and child support. The mother and children moved out in April 2024. The parties agreed on most issues, including that the mother would have primary residential responsibility and the father would pay $2,885 per month in child support. However, disputes remained regarding the effective date of the child support obligation and whether the father should receive credit for $9,150 in payments he made for the children’s needs after the separation but before the final judgment.The District Court of Stark County resolved the remaining issues based on written submissions. It set the child support obligation to begin on April 1, 2024, but denied the father credit for the $9,150 in voluntary payments. The court justified this by noting the father’s higher income and its discretion to set the commencement date for support. The father appealed, challenging only the refusal to credit his voluntary payments.The Supreme Court of North Dakota reviewed the case and held that, as a matter of law, a district court must credit voluntary child support payments made by the obligor during the pendency of the action when calculating past-due support. The court clarified that its prior decision in Richter v. Houser, 1999 ND 147, 598 N.W.2d 193, established this rule and that failure to provide such credit results in impermissible double recovery. The Supreme Court reversed the district court’s judgment and remanded with instructions to reduce the father’s past-due child support obligation by $9,150. View "Sutherby v. Astanina" on Justia Law