Muchow v. Kohler, 2021 ND 209

Jason and Andrea Alm are the paternal grandparents of two children (S.J.M.A. and D.J.M.A.).
In 2018 the district court awarded their son, Spencer Muchow, primary residential responsibility; Muchow died in 2019 and the children went into the mother Mariah Kohler’s exclusive care.
In 2020 the Alms petitioned for grandparent visitation under North Dakota’s Uniform Nonparent Custody and Visitation Act (UNCVA); a judicial referee denied the petition and the district court adopted the referee’s findings and denial on review.
The district court found the Alms had spent time with the children before their son’s death but did not prove how denial of visitation would cause a significant adverse effect on the children’s well-being.
Under the UNCVA a petitioner must show a substantial relationship, that denial of visitation would harm the child (a "significant adverse effect"), and that visitation is in the child’s best interest; the district court treated the harm requirement as dispositive and required proof by clear and convincing evidence.
The North Dakota Supreme Court affirmed, holding the district court’s factual findings were not clearly erroneous given the lack of evidence—especially expert evidence—establishing the requisite harm.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of visitation would result in harm to the children under the UNCVA	Alms: denial would harm the children; parent’s death is a significant factor supporting harm	Kohler: Alms failed to show a significant adverse effect or necessity for court-ordered visitation	Affirmed for Kohler — Alms did not prove harm by clear and convincing evidence; district court findings not clearly erroneous
Whether a parent’s death alone suffices to establish harm	Alms: the parent’s death is a significant factor and supports awarding visitation (citing authority)	Kohler: parental death does not automatically establish harm; evidence required linking denial to significant adverse effect	Court: parental death is not dispositive; distinguished Keenan on its evidentiary record (which included expert testimony)
Whether expert testimony is required to prove harm under the UNCVA	Alms: expert testimony is not strictly required per UNCVA comments	Kohler: while not strictly required, the absence of expert evidence left Alms unable to show significant harm	Court: expert testimony not mandatory, but without persuasive evidence (expert or equivalent) Alms failed to meet the clear-and-convincing harm requirement

Berg v. Berg, 642 N.W.2d 899 (N.D. 2002) (standard for clearly erroneous review of visitation-related factual findings)
Keenan v. Dawson, 739 N.W.2d 681 (Mich. Ct. App. 2007) (affirming grandparent visitation where expert testimony showed risk of harm to a young child after a parent’s death)