Curtiss v. Curtiss, 2017 ND 60

Background

Spencer Curtiss (father) is incarcerated at the North Dakota State Penitentiary; Rebecca Curtiss (mother) has primary residential responsibility for the parties’ two children, D.C. (13) and P.C. (10).
A prior stipulation provided for every-other-weekend, supervised visitation at the penitentiary; disputes arose over the content and effect of those visits.
Rebecca moved to suspend father’s parenting time while incarcerated, alleging visits were harmful; father moved to enforce visitation.
At a December 4, 2015 hearing, the children’s therapist and mother testified the father discussed inappropriate adult topics (e.g., Lucifer, witchcraft, relationship issues) during visits and that D.C. suffered severe emotional distress requiring hospitalization after a visit.
The district court’s Third Amended Judgment effectively made visits voluntary and required therapist/ counselor supervision if visits occurred; this Court remanded for specific findings on change of circumstances, danger to the children, and best interests.
On remand the district court made additional findings; the Supreme Court affirmed suspension of visitation with D.C., but reversed the suspension as to P.C. and remanded for further proceedings about supervised visitation logistics and cost allocation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether there was a material change in circumstances warranting modification of parenting time	Rebecca: Visits at the penitentiary caused emotional harm to the children, constituting a material change	Spencer: Enforce stipulated visitation; no sufficient change to modify	Held: Yes — court found evidence (inappropriate topics, D.C.’s hospitalization) supports material change
Whether visitation should be suspended because it is likely to endanger the children’s physical or emotional health (D.C.)	Rebecca: D.C. was emotionally harmed and hospitalized after visits; suspension necessary	Spencer: Visitation is presumed in child’s best interest; suspension not warranted without detailed proof	Held: Affirmed as to D.C. — findings support suspension; decision not clearly erroneous
Whether visitation should be suspended because it is likely to endanger the children’s physical or emotional health (P.C.)	Rebecca: P.C. is upset/ambivalent; suspension appropriate to protect her	Spencer: Presumption in favor of visitation; mother’s testimony and therapist’s reports don’t meet required detailed demonstration	Held: Reversed as to P.C. — record does not preponderantly show prison visits will likely endanger P.C.; suspension unsupported
Who may supervise and how visits should occur (neutral supervisor, cost allocation)	Rebecca: Visits should be supervised, and she was willing to take children if supervised	Spencer: (argued for enforcement of stipulation allowing mother to supervise)	Held: Mother may not be an appropriate supervisor; visits should be supervised by a counselor/therapist or neutral third party; district court must specify facilitation and cost responsibility on remand

Key Cases Cited

Curtiss v. Curtiss, 2016 ND 197, 886 N.W.2d 565 (remand required specific findings on change of circumstances and danger to children)
Hendrickson v. Hendrickson, 2000 ND 1, 603 N.W.2d 896 (visitation withheld only if likely to endanger child’s physical or emotional health)
Marquette v. Marquette, 2006 ND 154, 719 N.W.2d 321 (restriction on visitation requires preponderance of evidence and detailed demonstration of likely harm)
Bredeson v. Mackey, 2014 ND 25, 842 N.W.2d 860 (standard for modifying parenting time)
Prchal v. Prchal, 2011 ND 62, 795 N.W.2d 693 (material change in circumstances and best interests standard for modification)