Gagnon v. Gagnon
2017 ND 67
| N.D. | 2017Background
- William (Billy) Gagnon and Tara Lara married in 2011, separated in 2014, and have three children; both sought primary residential responsibility after divorce.
- District court issued an interim order giving Gagnon primary residential responsibility, reserving the permanent determination until Lara obtained counsel.
- At the March 2016 hearing the court found credible evidence of domestic violence by Gagnon (including a 2013 guilty plea and an incident resulting in Lara’s broken ribs) and concluded there was a pattern of domestic violence proximate to the proceeding.
- The court found Lara permanently left the marital home in October 2014 because of Gagnon’s violence; it found Gagnon was the aggressor and the domestic violence triggered the statutory rebuttable presumption against awarding him residential responsibility.
- On the best-interest factors the court found one factor slightly favored Gagnon (stability since separation) while four factors favored Lara and the remaining factors favored neither; the court concluded Gagnon failed to overcome the domestic-violence presumption by clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument (Gagnon) | Defendant's Argument (Lara) | Held |
|---|---|---|---|
| Whether the district court erred in awarding Lara primary residential responsibility | Gagnon: children’s stability in his care since the interim order overcomes the presumption; Lara cannot provide a safe environment | Lara: credible evidence of domestic violence creates a presumption precluding Gagnon from custody unless he proves by clear and convincing evidence the children’s best interests require it | Court: affirmed; domestic-violence presumption applies and Gagnon failed to overcome it |
Key Cases Cited
- Law v. Whittet, 858 N.W.2d 636 (discussing standard of review for residential responsibility findings)
- Adams v. Adams, 883 N.W.2d 864 (clarifying clearly erroneous standard for findings)
- Schweitzer v. Mattingley, 887 N.W.2d 541 (best-interest factors govern custody decisions)
- Datz v. Dosch, 836 N.W.2d 598 (domestic violence is predominant factor when credible evidence exists)
- Gietzen v. Gabel, 718 N.W.2d 552 (legislative history and application of domestic-violence presumption)
- Engh v. Jensen, 547 N.W.2d 922 (interpretation making domestic violence the paramount factor in custody decisions)
- Krank v. Krank, 529 N.W.2d 844 (practical effect: perpetrator cannot obtain custody unless other parent is unfit)