Rebenitsch v. Rebenitsch, 907 N.W.2d 41

Dustin and Janiece Rebenitsch divorced in 2014 and were initially awarded equal residential responsibility for their daughter H.J.R. (born 2012).
In 2017, Dustin moved to modify custody after Janiece relocated to Dickinson and alleged domestic-violence concerns arose regarding Janiece’s household; social services found no evidence of abuse.
At the time of the modification hearing, Janiece lived in Dickinson with her boyfriend Jordan Kessel and another daughter; Dustin lived in Bismarck with his wife Jessica and her two sons.
Evidence at the hearing included testimony about each parent’s household, H.J.R.’s anxiety and behavioral changes after the move, and concerns about Jessica’s opioid addiction and other mental-health issues.
The district court evaluated the statutory best-interest factors in N.D.C.C. § 14-09-06.2, found most factors neutral, factor (d) favored Dustin, and awarded primary residential responsibility to Dustin subject to Janiece’s reasonable parenting time.
Janiece appealed, arguing the court clearly erred on factors (b) (ability to provide safe environment) and (k) (interaction with household members) and that the entire record showed the award was mistaken.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Factor (b): which parent can assure adequate food, shelter, medical care, and a safe environment	Janiece: Dustin’s home is unsafe because his wife Jessica has an opioid addiction, so factor (b) should favor Janiece	Court: Both homes had concerns; therapists found no safety concerns in Janiece’s home; behavioral issues tied to move; factor (b) is neutral	Affirmed: factor (b) favored neither parent; district court did not clearly err
Factor (k): effect of persons in each household (history/tendency of harm)	Janiece: Court improperly considered past interactions and relationships and assessed past 3 years of Jessica’s contact; factor (k) should favor Janiece	Court: Past behavior can predict future behavior; court may consider current household members and relevant past interactions to assess impact	Affirmed: factor (k) favored neither parent; district court did not clearly err
Whether award of primary residential responsibility was clearly erroneous on whole record	Janiece: Cumulative evidence (move, household composition, Jessica’s addiction) shows court erred	Court: Most best-interest factors neutral; no evidence showed Jessica’s issues significantly impacted child; not left with firm conviction of mistake	Affirmed: district court’s custody decision was not clearly erroneous

Brouillet v. Brouillet, 875 N.W.2d 485 (N.D. 2016) (standard of review for custody and need for sufficiently specific findings)
Interest of A.B., 792 N.W.2d 539 (N.D. 2010) (past behavior may indicate future behavior in custody contexts)
Kienzle v. Selensky, 740 N.W.2d 393 (N.D. 2007) (consideration of past conduct in assessing future risk)
Doll v. Doll, 794 N.W.2d 425 (N.D. 2011) (factor (k) focuses on persons currently present in or frequenting the household)