Niles v. Eldridge
2013 ND 52
| N.D. | 2013Background
- Derrick Deaver and Julie Jensen divorced in 2009; Jensen received primary residential responsibility, Deaver had parenting time.
- In June 2012 Jensen moved to suspend Deaver’s parenting time alleging abuse by his fiancée’s eight-year-old daughter.
- On June 28, 2012 the district court issued an ex parte order suspending Deaver’s parenting time and mandating supervised time away from his fiancée and her daughter.
- Deaver challenged the ex parte order, arguing lack of notice and improper ex parte procedure under N.D.R.Ct. 8.2.
- A July 31, 2012 evidentiary hearing occurred, after which the court ordered continued supervised time outside the presence of the fiancée and her daughter, pending further order.
- Deaver appeals the post-hearing order, and the Supreme Court affirms the order as not clearly erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ex parte order complied with N.D.R.Ct. 8.2 requirements | Jensen—ex parte order justified by exceptional circumstances | Deaver—procedure failed; he lacked notice | Ex parte requirements not satisfied; but appeal is from post-hearing order |
| Whether evidence supported restricting parenting time | Restriction warranted by harm from abuse and denial of children’s claims by Deaver | No demonstrated harm by Deaver; insufficient basis | Evidence supported supervised, restricted parenting time |
| Whether the post-hearing order was clearly erroneous under parenting-time standards | Court properly weighed credibility and child harm; justified order | Court erred in credibility findings; overreached | Order not clearly erroneous; affirmed |
Key Cases Cited
- Keita v. Keita, 2012 ND 234 (ND 2012) (standards for restricting parenting time; need detailed harm showing)
- Wolt v. Wolt, 2010 ND 26 (ND 2010) (best interests and harm-based restraint of parenting time)
- Marquette v. Marquette, 2006 ND 154 (ND 2006) (restriction on parenting time if likely to endanger health; detailed harm)
- Marsden v. Koop, 2010 ND 196 (ND 2010) (specificity of findings to support decision)
- Whitmire v. Whitmire, 1997 ND 214 (ND 1997) (emergency orders; facially justified affidavit requirements)