2024 ND 130
N.D.2024Background
- David McCay and Amber McCay divorced in 2018, with David awarded primary residential responsibility for their minor child.
- Amber filed for modification of primary residential responsibility and relocation to Nevada in 2023, citing concerns over David's substance abuse and instability.
- Evidence showed David had developed alcohol and cannabis use disorders, was repeatedly unemployed and incarcerated, failed to comply with court orders, and others often cared for the child.
- The district court granted Amber's motion, awarding her primary responsibility and allowing relocation based on findings of a material change in circumstances and the child's best interests.
- David appealed, challenging findings on the material change, best interest factors, relocation, and parenting schedule; Amber sought attorney’s fees, arguing the appeal was frivolous.
- The North Dakota Supreme Court reviewed under a clearly erroneous standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Material change in circumstances | New facts show David's substance abuse/instability endangers child | No material change—the facts were previously known | Material change supported by new evidence; affirmed |
| Best interest of the child | Environment under David is unstable/adverse; Amber can better meet child's needs | No evidence of endangerment or adverse impact | Sufficient evidence of adversity; Amber's favor affirmed |
| Relocation to Nevada | Relocation advantages child and Amber; supports stability | Relocation improperly evaluated; potential loss of relationship | Advantages and relationship safeguards support relocation |
| Parenting schedule | Parenting plan is appropriate considering history and child safety | Should not reduce time; maintains close relationship | Extensive visitation justified by safety concerns; affirmed |
| Attorney's fees for frivolous appeal | Appeal is frivolous; seeks attorney's fees | Appeal is not frivolous or devoid of merit | Appeal not frivolous; fees denied |
Key Cases Cited
- Krueger v. Tran, 822 N.W.2d 44 (N.D. 2012) (standard for reviewing custody modifications)
- Selzler v. Selzler, 631 N.W.2d 564 (N.D. 2001) (material change in circumstances involving endangerment)
- Ludwig v. Burchill, 514 N.W.2d 674 (N.D. 1994) (custody modification based on parental substance abuse)
- Green v. Swiers, 920 N.W.2d 471 (N.D. 2018) (standards for decisions on parental relocation)
- Hruby v. Hruby, 776 N.W.2d 530 (N.D. 2009) (relocation denials based on custodial parent's lack of support for noncustodial parent relationship)