Interest of N.C.M., D.C.M., and J.J.M.
2013 ND 132
| N.D. | 2013Background
- Parents Micah Green (mother) and Christopher Morrissey (father) share three children born 2006–2007; Green was primary residential parent under a 2008 judgment.
- Since 2008, Grand Forks Social Services generated three child-protection assessments raising concerns about Green’s drug use, mental health, and caregiver capacity; children were temporarily removed in March 2011 and adjudicated deprived while in Green’s care.
- Morrissey moved in Sept. 2010 to modify primary residential responsibility, alleging the children’s environment jeopardized their health and development.
- A bench trial was held in Dec. 2011; the trial court found a significant change in circumstances and awarded primary residential responsibility to Morrissey, granting limited parenting time to Green.
- Green appealed, challenging (1) the court’s decision to hold an evidentiary hearing, (2) the custody modification as clearly erroneous, (3) admission of certain evidence (psychological records, social services reports, jail call), and (4) the scope of parenting time awarded.
Issues
| Issue | Plaintiff's Argument (Green) | Defendant's Argument (Morrissey) | Held |
|---|---|---|---|
| 1) Was the evidentiary hearing proper under the prima facie standard for modification within two years? | Green: Morrissey failed to establish a prima facie case, so no evidentiary hearing should have been ordered. | Morrissey: Court properly found prima facie; in any event, full evidentiary hearing was held. | Moot on appeal because a full evidentiary hearing occurred; Court declines to address prima facie ruling. |
| 2) Did the trial court clearly err in awarding primary residential responsibility to Morrissey? | Green: Court misapplied best-interest factors and undervalued stability/continuity with custodial parent; findings unsupported. | Morrissey: Evidence showed significant change (instability, drug use, suicide attempt, deprivation finding) and best-interest factors favor him. | Affirmed. Court found ample evidence supporting findings that the children’s environment with Green endangered emotional/physical health and that Morrissey better promotes the children’s best interests. |
| 3) Was the admission of contested evidence an abuse of discretion (Dr. Decker’s evaluation, Green’s psychological records, redacted social services reports, recorded jail call)? | Green: Expert testimony and her confidential psychological/medical records were privileged; redactions made reports misleading; jail-call and other hearsay were prejudicial. | Morrissey: Experts and public/business records admissible; recordings authenticated; Green had opportunity to cross-examine. | Affirmed. Trial court did not abuse discretion admitting Dr. Decker as expert or his parenting evaluation, properly admitted/considered social services reports and jail-call; objections to redactions and privilege were insufficiently preserved or unsupported. |
| 4) Was the parenting-time award (every-other-weekend only) clearly erroneous? | Green: Limited parenting time is not in children’s best interests given her long-term caregiving role; more weekday/summer time needed. | Morrissey: Restrictions appropriate given findings that parenting time could endanger children’s health; judgment allows additional time by agreement and holiday schedule. | Affirmed. Court’s parenting-time decision supported by record and not clearly erroneous; judgment permits modification by written agreement and sets holiday schedule. |
Key Cases Cited
- Laib v. Laib, 751 N.W.2d 228 (2008) (standards for modification within two years)
- Kartes v. Kartes, 831 N.W.2d 731 (2013) (prima facie hearing issue moot if full evidentiary hearing held)
- Hammeren v. Hammeren, 823 N.W.2d 482 (2012) (custody awarded to parent who better promotes child’s best interests; clearly erroneous standard)
- In re J.S.L., 763 N.W.2d 783 (2009) (admission of child-assessment reports and harmless-error analysis for hearsay)
- In re W.J.C.A., 810 N.W.2d 327 (2012) (expert may rely on out-of-court reports to form opinion and testify to basis)
- Bertsch v. Bertsch, 710 N.W.2d 113 (2006) (parenting time is child’s right; may be curtailed if it endangers child)