895 N.W.2d 747
N.D.2017Background
- Child L.Z.N., born 2014; mother Charlotte Jackson-Narvais petitioned in 2016 to change his surname to match maternal family and half‑sibling and to avoid stigma tied to father Shawn Narvais’s criminal convictions.
- Narvais pled guilty shortly after the child’s birth to crimes requiring registration; parties divorced in 2015 and Narvais had little contact or support for the child.
- District court scheduled a hearing and offered Narvais the opportunity to appear telephonically if he made the arrangements; Narvais, incarcerated, asked the court to order the Department of Corrections (DOCR) to permit a telephonic appearance but the court denied that request.
- Narvais did not appear or have counsel at the hearing; evidence (including his paternity‑test request) was admitted without objection and the court granted the name change.
- Narvais appealed, arguing: improper factors used in best‑interest analysis, insufficient notice under N.D.C.C. § 32‑28‑02(4), and denial of due process by refusing to order DOCR to allow his telephonic appearance.
Issues
| Issue | Plaintiff's Argument (Narvais) | Defendant's Argument (Jackson) | Held |
|---|---|---|---|
| Whether court relied on improper factors in child best‑interest analysis | Court impermissibly considered his paternity test request and sex‑offender registration/stigma | Mother argued those facts (stigma, harassment risk, family unity) were relevant to best interest | Court affirmed: admission without objection allowed consideration; stigma/embarrassment may be relevant to best interest |
| Whether district court needed to apply § 14‑09‑06.2 best‑interest checklist | Narvais: court should have addressed each statutory best‑interest factor | Jackson: § 32‑28‑02 requires ‘‘proper and reasonable cause’’ including best interest, not § 14‑09‑06.2 checklist | Court affirmed: no requirement to recite § 14‑09‑06.2 factors; consideration of best interest suffices |
| Whether notice under § 32‑28‑02(4) was defective (publication/mailing) | Narvais: publication was only online; penitentiary didn’t provide Bismarck Tribune so he lacked notice | Jackson: provided physical publication in both counties and mailed notice to Narvais at penitentiary | Court affirmed: notice and mailing were proper |
| Whether due process required court to order DOCR to allow telephonic/ITV appearance | Narvais: court violated procedural due process by not compelling DOCR to permit his attendance | Jackson: court offered avenue to appear if Narvais arranged it; court has no duty to secure prison’s cooperation | Court affirmed: due process requires notice and an opportunity to be heard; court need not force DOCR to provide access but must allow an avenue to appear (which it did) |
Key Cases Cited
- In re Berger ex rel. K.C.F., 778 N.W.2d 579 (N.D. 2010) (standard for minor name change requires best‑interest consideration)
- Hartleib v. Simes, 776 N.W.2d 217 (N.D. 2009) (discusses proper and reasonable cause standard in name‑change cases)
- Curtiss v. Curtiss, 886 N.W.2d 565 (N.D. 2016) (district court need not compel prison to provide telephonic attendance; prisoner bears arrangements)
- St. Claire v. St. Claire, 675 N.W.2d 175 (N.D. 2004) (telephone appearance can satisfy prisoner’s right to appear)
- Walbert v. Walbert, 567 N.W.2d 829 (N.D. 1997) (procedural due process requires notice and meaningful opportunity to be heard)
- Interest of F.H., 283 N.W.2d 202 (N.D. 1979) (factors for allowing prisoner’s personal appearance in civil suits)
- Stone v. Morris, 546 F.2d 730 (7th Cir. 1976) (factors guiding whether a prisoner should appear personally in civil litigation)