Sweeney v. Kirby
2015 ND 148
| N.D. | 2015Background
- Kirby and Sweeney have one child born in 2004; Kirby previously had primary care with supervised time, later Sweeney was granted primary custody in 2011.
- Kirby moved to modify primary residential responsibility in 2012; after evidentiary hearings, prior orders denying modification were affirmed.
- In May 2014 Kirby again sought modification alleging Sweeney’s incarcerations created an unsafe environment and interference with Kirby’s parenting time.
- Sweeney was incarcerated during the 2013 and 2014 hearings but appeared by telephone; Naomi Sweeney, living with Sweeney and the child, cared for the child.
- Kirby has a criminal history including felony theft and a sexual offense with a 16-year-old; she had completed probation by the July 2014 hearing.
- The district court denied Kirby’s motion, finding no material change in circumstances and that modification wasn’t necessary to serve the child’s best interests; the court applied §14-09-06.6(6) but the two-year rule required §14-09-06.6(5).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard for modification within two years | Kirby argues for §14-09-06.6(5) applicability | Sweeney opposes, arguing the court used the correct standard | Correct result; court's analysis upheld despite applying §14-09-06.6(6) |
| Material change in circumstances and best interests | Kirby asserts new factors since April 2013 show change | Sweeney contends no material change; best interests favor stability | No material change; denial affirmed |
| Effect of parenting-time interference on best interests | Kirby claims she was denied contact with the child | Sweeney maintained contact via other arrangements; dispute-resolution steps exist | Findings not clearly erroneous; parenting-time concerns not shown to alter custody |
| Stability of home environment and child’s development | Kirby argues home environment danger due to incarceration | Court found child thrived with Sweeney/Naomi; Dawn’s stability questionable | Home stability factor favored Sweeney; change not warranted |
| Appropriate consideration of best-interest factors | Kirby asserts comprehensive factors support modification | Court’s detailed findings support continued primary with Sweeney | Court’s findings support denial; not clearly erroneous |
Key Cases Cited
- Kartes v. Kartes, 831 N.W.2d 731 (2013 ND 106) (modification within two years; must show best interests)
- Krueger v. Tran, 822 N.W.2d 44 (2012 ND 227) (clearly erroneous standard for modification decisions)
- Graner v. Graner, 738 N.W.2d 9 (2007 ND 139) (using correct law; may still reach correct result though standard applied differently)
- Sweeney v. Sweeney, 654 N.W.2d 407 (2002 ND 206) (dispute-resolution/post-deprivation procedures in parenting time)
- Iverson v. Iverson, 535 N.W.2d 739 (ND 1995) (importance of parent-child relationship in custody decisions)