Johnshoy v. Johnshoy, 2021 ND 108

Zachary Johnshoy was awarded primary residential responsibility for the parties’ two minor children in the 2014 divorce; Amanda (Fry) later remarried and moved.
In June 2020 Fry moved to modify primary residential responsibility and parenting time, filing her affidavit and an affidavit from the parties’ 10-year-old child.
Fry’s affidavits argued her home situation had materially improved (marriage, husband’s veteran benefits, move to Dickinson) and the child preferred to live with her.
Johnshoy submitted a rebuttal affidavit showing he also had moved and been in multiple post-divorce relationships; one relationship involved an assault on him witnessed by the children.
The district court denied Fry’s motion without an evidentiary hearing, finding she failed to establish a prima facie case; Fry appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Fry’s affidavits established a prima facie case to warrant an evidentiary hearing to modify primary residential responsibility	Fry: improved living conditions and child’s preference show a material change and that modification serves the children’s best interests	Johnshoy: affidavits are conclusory; no facts showing children harmed or that change is necessary; opposing affidavit rebuts	Court: affirmed denial. Fry showed improved circumstances (first prong) but failed to show a material change that adversely affected the children or that modification was necessary for their best interests; no prima facie case
Whether the child’s affidavit (preference/fear) was sufficient evidence of maturity and persuasive reasons to support modification	Fry: child’s expressed fear of dad and preference to live with mom are significant and justify a hearing	Johnshoy: child’s statements are conclusory, lack specific factual support, and no evidence shows the child is mature enough to make such a decision	Court: child’s affidavit lacked factual support demonstrating maturity or persuasive reasons; preference alone, unsupported, is insufficient

Solwey v. Solwey, 888 N.W.2d 756 (explains prima facie standard for custody modification and affidavit competency)
Anderson v. Jenkins, 837 N.W.2d 374 (defines "material change in circumstances")
Schroeder v. Schroeder, 846 N.W.2d 716 (requires showing modification is necessary to serve best interests and directs consideration of § 14-09-06.2(1) factors)
Kelly v. Kelly, 640 N.W.2d 38 (improvement in one parent plus decline in other parent may amount to significant change)
Gietzen v. Gietzen, 575 N.W.2d 924 (parent remarriage or moving in with significant other can be a significant change)
Blotske v. Leidholm, 487 N.W.2d 607 (prima facie case requires that change either requires or serves the child’s best interests)