Glass v. Glass
800 N.W.2d 691
| N.D. | 2011Background
- In 2005, divorce decree awarded Julie Glass primary residential responsibility for three sons, ages 16, 13, and 8, with ADHD/Asperger in two older children.
- Julie moved with the children to Casselton in 2006; she married Mark Hopewell in 2007 and divorced him in 2009.
- Julie began dating Steve McNab in 2009; McNab moved into Julie’s home during weekends with his children.
- Darin Glass remarried Debbie Glass in 2009 and, after sporadic parenting time, began about one weekend per month with the children.
- Two incidents in late 2009 (gun possession by the oldest son; a late-2009 domestic dispute involving McNab) prompted an ex parte order and a modification petition.
- A May 28, 2010 parenting investigator recommended Julie keep primary residence if she ends her relationship with McNab; otherwise Darin should have primary residence.
- At a June 2010 evidentiary hearing, multiple witnesses testified; the oldest two children expressed a preference to live with Julie, but the court ultimately granted Darin primary residential responsibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a material change in circumstances | Glass: no material change justifying modification. | Glass: there was a material change since prior order. | Yes, material change found; modification warranted. |
| Whether the modification is in the children's best interests | Glass: custodial stability favors continued residency with Julie. | Glass: best interests weigh toward Darin given incidents and environment concerns. | Yes, the district court's best-interests analysis supports Darin. |
| Whether the mature child preferences affected the decision | Glass: oldest children’ preferences should carry weight. | Glass: preferences discounted due to lack of persuasiveness and inconsistent history. | Preferences considered but not controlling; not persuasive to override other factors. |
| Whether the continuance denial based on timing of the parenting investigator’s report was an abuse of discretion | Glass: 30-day rule violated, continuance needed. | Glass: non-prejudicial due to available alternatives; schedule accommodated. | No abuse of discretion; scheduling accommodated the investigator’s testimony. |
Key Cases Cited
- Lechler v. Lechler, 2010 ND 158 (ND 2010) (two-step modification burden: material change and best interests)
- Siewert v. Siewert, 2008 ND 221 (ND 2008) (material change defined as new facts not known earlier)
- Neustel v. Neustel, 2010 ND 216 (ND 2010) (custodial stability and best interests balancing)
- Dufner v. Trottier, 2010 ND 31 (ND 2010) (deference to court's factual findings; standard of review)
- Machart v. Machart, 2009 ND 208 (ND 2009) (mature child preference considerations)
- Mayo v. Mayo, 2000 ND 204 (ND 2000) (close-calls favor custodial continuity but not mandatory)
- Myers v. Myers, 1999 ND 194 (ND 1999) (close calls may be resolved by favoring continued residency)
- Lovin v. Lovin, 1997 ND 55 (ND 1997) (custodial stability as a weighty factor)
- Stanhope v. Phillips-Stanhope, 2008 ND 61 (ND 2008) (domestic violence considerations in custody cases)