897 N.W.2d 326
N.D.2017Background
- Parents (O’Hara and Schneider) share a child; relationship included repeated domestic violence by O’Hara, including an incident where he punched Schneider during an exchange while the child witnessed it.
- Schneider obtained a domestic violence protection order and moved to modify O’Hara’s parenting time from unsupervised to supervised.
- The district court initially excluded some evidence, denied the modification, and the Supreme Court reversed and remanded for further proceedings.
- On remand the district court held a new evidentiary hearing, received testimony (including from O’Hara and his anger-management counselor) and affidavits about O’Hara’s parenting, and considered alleged violations of the protection order after treatment.
- The court found a pattern of domestic violence (raising the statutory presumption for supervised visits) but concluded O’Hara rebutted that presumption by clear and convincing evidence and allowed unsupervised parenting time.
- The Supreme Court affirmed, holding the court complied with the remand, the additional findings were not clearly erroneous, and the evidence supported rebuttal of the presumption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court should have limited relief to on-the-record findings rather than a new evidentiary hearing | O’Hara: new hearing not required; earlier record should suffice | Schneider: remand required only supplementary findings, not a new hearing | Court: new evidentiary hearing was appropriate and complied with mandate |
| Whether the presumption for supervised parenting under N.D.C.C. § 14-09-29(2) was raised | Schneider: O’Hara’s history and pattern of domestic violence raised the presumption | O’Hara: contested relevance/weight of prior incidents and emphasized post-treatment conduct | Court: presumption was raised—court found a pattern of domestic violence |
| Whether O’Hara rebutted presumption by clear and convincing evidence that unsupervised time would not endanger the child | O’Hara: presented evidence of frequent, benign visits, father–child bond, and completion of anger-management treatment | Schneider: pointed to protection-order violations during/after treatment and argued anger management is inadequate for domestic violence | Court: evidence (affidavits, observations, absence of recent harm) supported rebuttal by clear and convincing evidence |
| Whether district court erred in best-interests analysis and crediting counselor testimony | O’Hara: court properly weighed evidence and credited relevant testimony | Schneider: counselor testimony improperly credited; best-interests wrongly analyzed given pattern of violence | Court: no clear error; will not reweigh credibility and findings are supported by record |
Key Cases Cited
- Engh v. Jensen, 547 N.W.2d 922 (N.D. 1996) (standard of review for trial court factual findings and clearly erroneous rule)
- Heck v. Reed, 529 N.W.2d 155 (N.D. 1995) (policy rationale for imposing evidentiary obstacles when domestic violence is shown)
- Interest of B.N. & K.K., 660 N.W.2d 610 (N.D. 2003) (distinguishing anger management from appropriate domestic violence treatment)