978 N.W.2d 652
N.D.2022Background
- Parents: Nicki Erickson and Tim Faber have three children: K.F. (born 2004), M.F. (born 2009), and J.F. (born 2013). Parties separated after moving from Milnor to Gwinner.
- Faber sued in Feb 2020 seeking equal residential responsibility; Erickson sought primary residential responsibility.
- At a Sept. 2021 evidentiary hearing the district court allowed all three children to testify about their residential preferences (K.F. 16, M.F. 12, J.F. 8).
- District court awarded equal residential responsibility for all three children but stated K.F. could "come and go as she so chooses."
- Erickson appealed, arguing the two youngest were not mature enough to testify and the court erred in awarding equal residential responsibility, particularly for K.F.
- Supreme Court: affirmed allowance of the children’s testimony; affirmed equal residential responsibility for M.F. and J.F.; reversed as to K.F., remanding to award Erickson primary residential responsibility, set parenting time, and recalc child support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by allowing M.F. (12) and J.F. (8) to testify about preferences | Erickson: children not of sufficient maturity; preference testimony should be excluded | Faber: court may evaluate maturity and consider children’s testimony | Court: no abuse of discretion; findings support maturity and testimony admissible |
| Whether equal residential responsibility for M.F. and J.F. was clearly erroneous | Erickson: primary placement with her warranted given history and impact on children | Faber: week-by-week equal schedule is in children’s best interest; children prefer equal time | Court: affirmed; factual findings supported equal week-by-week arrangement for M.F. and J.F. |
| Whether equal residential responsibility for K.F. (oldest) was clearly erroneous | Erickson: K.F. intends to live primarily with her; court cannot delegate schedule to child | Faber: would not force K.F.; K.F. could have flexibility to visit | Court: reversed as error of law—court improperly let K.F. effectively choose schedule; remanded to award Erickson primary responsibility and set parenting time/support |
Key Cases Cited
- Boldt v. Boldt, 2021 ND 213, 966 N.W.2d 897 (describing clearly erroneous standard for residential responsibility findings)
- Solwey v. Solwey, 2018 ND 82, 908 N.W.2d 690 (child maturity is fact-specific; trial court discretion on testimony)
- Hammeren v. Hammeren, 2012 ND 225, 823 N.W.2d 482 (district court must consider statutory best-interest factors)
- Krueger v. Krueger, 2011 ND 134, 800 N.W.2d 296 (court may not delegate custody decisions to child’s choice)
- Marquette v. Marquette, 2006 ND 154, 719 N.W.2d 321 (same principle prohibiting delegation of custody decisions)
- Glass v. Glass, 2011 ND 145, 800 N.W.2d 691 (mature child’s preference may be considered but requires persuasive reasons)
- Wades Welding LLC v. Tioga Properties, LLC, 2021 ND 214, 966 N.W.2d 912 (abuse of discretion standard explained)
- Estate of Albrecht, 2020 ND 27, 938 N.W.2d 151 (on adoption of proposed findings and reviewing findings signed by court)