Adoption of D.J.D.
2013 ND 3
| N.D. | 2013Background
- Kirby and Sweeney are the parents of D.L.K. (born 2004); paternity established 2006 and child support set.
- Sweeney sought primary residential responsibility in January 2011; trial August 22, 2011 awarded Sweeney primary with Kirby receiving supervised parenting time.
- Kirby moved to modify primary residential responsibility alleging denial of visitation and abuse; district court denied modification without an evidentiary hearing for lack of prima facie showing.
- The two-year period following the order triggering §14-09-06.6(5) required a showing of a modification is necessary for best interests and specific grounds; Kirby sought an evidentiary hearing.
- The district court held Kirby did not establish a prima facie case; on appeal, court reverses and remands for evidentiary hearing after finding Kirby did establish prima facie case based on interference with parenting time.
- The court found Kirby’s affidavits based on first-hand knowledge, supported by telephone records, sufficient to show persistent and willful denial or interference with parenting time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prima facie showing under §14-09-06.6(5) satisfied? | Kirby showed interference with parenting time | Sweeney prevailed; no prima facie case | Yes; prima facie shown; evidentiary hearing required. |
| Entitlement to an evidentiary hearing upon prima facie showing? | Prima facie evidence warrants hearing | Hearing not necessary if no prima facie case | Entitled to evidentiary hearing on modification. |
Key Cases Cited
- Green v. Green, 772 N.W.2d 612 (ND 2009) (prima facie standard and evidentiary burden for modification)
- Schumacker v. Schumacker, 796 N.W.2d 636 (ND 2011) (competent evidence and first-hand knowledge required for affidavits)
- Bladow v. Bladow, 701 N.W.2d 903 (ND 2005) (relationship between parenting time and modification evidence)