Lead Opinion
Cаtherine Barstad (Cathy) appeals from an amended judgment changing custody of her son, Ryan, to Ryan’s father, James Barstad (Jim). We reverse and remand.
At the time of Jim and Cathy’s marriage in October 1982, Cathy’s son, Ryan, was three years old. Jim adopted Ryan soon after their marriage. The couple’s second son, Bradley, was born in March 1983. Jim and Cathy were divorced in November 1988. Cathy received custody of the two boys and Jim received supervised visitation because of the manifestations of his behavioral disorder of exhibitionism, a condition which was deemed treatable but not curable. At the time of the divorce, Jim had a record of four convictions for indecent exposure between 1981 and 1987, and for the years 1973 to 1985, three convictions of disorderly conduct, one conviction of lying-in-wait and one conviction of making an obscene or harassing telephone call. After the divorce, an additional incident occurred in 1988.
After receiving treatment, Jim petitioned for unsupervised visitation in February
In February 1992, Cathy told Jim of her engagement to Charles Koval and asked for Jim’s consent to her moving with the children to Charles’ residence in Crookston, Minnesota. At first, Jim consentеd to the move, but he later withdrew that consent and moved to gain the boys’ custody. According to Jim, he sought custody for a variety of reasons, the foremost of which were the boys’ statements, obtained in response to Jim’s interrogation, that they preferred to live with him in Fargo. He also believed they would benefit from their continued involvement in the Fargo spоrts community and that he could help improve Ryan’s poor academic performance. Jim was uneasy, as well, about how the boys would adapt to living with Charles’ three children.
Cathy subsequently filed a motion to change the boys’ residence to Crookston, Minnesota. She claimed the move was in the boys’ best interests, that her fiance, Charles, would havе a positive influence on them, and that the short distance between Crookston and Fargo would not affect Jim’s visitation rights. After a change in Cathy and Charles’ plans, Cathy amended her motion to state her proposed residence as Shelly, Minnesota, a small community approximately 38 miles from Fargo.
With both motions filed and a hearing scheduled, Jim, Cathy, Ryan and Bradley, at Jim’s request, underwent custody evaluations from psychologist Neil Clark. Dr. Clark prefaced his “Custody Evaluation Summary” with the following remarks:
“With regards to background (psychosocial history) Ms. Barstad presents a normal background, and Mr. Barstad has had several relevant problems: physical abuse as a child, inpatient and outpatient psychiatriс treatments, and nine law enforcement convictions. None of his historical problems showed a direct impact on either of the children. They have not been victimized nor abused. Generally, in custody related issues a period of two-three years since the last occurrence is considered a remission of the situation. That period of time has been established for Mr. Barstad. This examiner would point out, however, that there have been previous periods of remission, followed by reoccurrence.”
Apparently treating his custody evaluations for this modification proceeding no differently than he would for an original divorce proceeding, Dr. Clark concluded that Cathy and Jim were “suitable and competent parents” and that neither posed “any dangers to the children.” In recommending Ryan’s placement with Jim, Dr. Clark explained:
“Ryan’s current personality adjustment is superior. He currently feels more closely attached to his father. He states a clear preference for living with his father. He wants to maintain his involvements in thе Fargo community (friends, sports, schools). When asked if Ms. Barstad were to remain in Fargo, would his preference for living with his father change, he replied, ‘no’. Ryan reported more mutual activities with his father.”
Dr. Clark thus recommended, based on “the preference of the child, the extent of community roots, continuity of schools/ sports/friends, the developmental age of the child, the mixed affect (conflicts) of the siblings, and the prospects of readjusting to a new blended family, new school, [and] new friends,” that Jim receive custody of Ryan and Cathy retain custody of Bradley.
Cathy had the boys examined by another psychologist, Dr. Berch R. Offutt. Dr. Of-futt made no recommendation regarding custodial placement and did not сomment on Dr. Clark’s custody evaluation. However, Dr. Offutt observed that Ryan, who was twelve years old at the time, was “under significant stress regarding his present family situation” and was “attempting to
A hearing on the parties’ motions was conducted in June 1992. At the close of the proceeding, the court orally granted Cathy’s motion to move, suggested that she would receive custody of Bradley, but retained the issue of Ryan’s custody under advisement. Cathy married Charles on July 11, 1992. On August 10, 1992, the court issued its memorandum opinion, finding that there had been a significant change of circumstances and that it was “in the interests of the minor children” that Jim take custody of Ryan, that Cathy retain custody of Bradley, and that visitation be modified. The court’s findings and conclusions of law were incorporated into its third amended judgment. Cathy has appealed from that judgment, challenging the change of Ryan’s custody.
A trial court’s decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Blotske v. Leidholm,
A request to modify custody requires the determination of two issues in chronological order: (a) whether there has been a significant change of circumstances since the original divorce decree and custody award; and, if so, (b) whether those changes compel or require, in the best interests of the child, a change of custody. Delzer v. Winn,
The court’s memorandum opinion was issued on August 10, 1992, only shortly after this court’s opinion in Blotske v. Leidholm, on July 28, 1992, and several months before we decided Delzer v. Winn on November 5, 1992. Blotske and Delzer capsulize the proposition that in a change of custody proceeding, the child’s stability with the custоdial parent is a primary consideration, and the statutory factors of NDCC § 14-09-06.2 must be weighed with that primacy in mind. The Blotske-Delzer duo also cautions that a trial court should change custody only if a change in custody is necessary or required for the best interests of the child. While those best interests are to be determined from considering the statutory factors in NDCC § 14-09-06.2, the procеss of weighing those factors must be “gauged against the backdrop of the stability of the child’s relationship with the custodial parent.” Blotske, supra at 610; Delzer, supra at 744. The maintenance of custodial stability and continuity “is a very compelling consideration.” Delzer, supra at 744.
So the question becomes whether the trial court’s assessment in this case comports with the rule of Blotske and Delzer. We believe it does not; therefore, we reverse the order transferring Ryan’s custody to Jim.
The trial court, in effect, identified three significantly changed circumstances: Cathy’s marriage and move to Shelly, Minnesota; the move’s effect on the present visitation scheduling; and Ryan’s “reasonable and knowledgeable preference to reside with Jim.”
As to the first significant change, Cathy’s mоve and remarriage, we have said that a “move to another state does not, by itself, compel a change of custody. If the trial court approves the move, even after the fact, the move does not dictate a change of custody.” Gould v. Miller,
We come to the effect of Ryan’s preference to live with his father. The trial court found that twelve-year-old Ryan exercised a “reasonable and knowledgeable” preference to live with his father in Fargo. As a consequence of this preference, Ryan was separated from his younger brother. While we have condoned divided custody, we have done so cautiously, always recognizing that it is a solution called for by special circumstances. E.g., Gravning v. Gravning,
The preference of a child who is capable of intelligently choosing between his parents for custody is a relevant factor in determining the best interest of the child. NDCC § 14 — 09—06.2(l)(i); Mertz v. Mertz,
Although age is not the exclusive indiсator of a child’s maturity and capacity to make an intelligent choice, generally, a child’s preference is entitled to more weight as he or she grows older. See Mertz, supra. And indeed, it would be foolhardy to ignore the input of an older teenager’s firmly held preference in the resolution of his or her custody. But, a child’s preference, in a custody modification proceeding, to remain where his friends are and where his familiar school and community are, while “understandable,” should not dictate custody when that child is twelve years old. See, e.g., Thomas, supra at 435; Novak, supra. Indeed, that sort of preference is all but predictable. Thomas, supra. A twelve-year-old’s desire to remain involved in hometown sports activities is a “goal[] and ambition[ ],” Mertz, supra at 97 n. 2, that cannot trump the superior benefits to his best interests that we have recognized to inhere in the finality of litigation and the stability
We conclude that the decision to change custody was induced by an erroneous view of the law and, therefore, was clеarly erroneous. Reversed and remanded.
Notes
. Charles has four children from a prior marriage, three of whom are in his custody.
Dissenting Opinion
dissenting.
I might not have reached the same decision as the trial court in this instance, but I am reluctant to reverse the trial court in a matter in which there is not clearly a “right” or a “wrong” solution. In addition, I write separately to note my concern with the majority’s analysis which appears to imply that because Cathy’s move and remarriage may not alone be sufficient to compel a change of custody, they are no longer to be considered. Standing alone they may not be sufficient, but they surely remain a part of the mix of circumstances to be considered with the other existing circumstances in reaching a decision.
Cases involving factual precedents are of limited value. Blotske v. Leidholm,
Delzer produced the opposite result from this court, i.e., we reversed a court order changing custody because the positive changes in the noncustodial parents life did warrant a change of custody interrupting the continuity and stability of the present custodial arrangement. Two Justices signed the majority, one Justice concurred specially, and two Justices dissented.
If these cases are illustrative of anything, it is that this court shоuld not attempt to substitute its judgment for that of the trial court, even if we disagree with the result, where the trial court has reached a reasoned decision that does not rely on impermissible factors. I recognize that such an approach may make the trial court’s decision nearly nonreviewable. Perhaps that is the way it should be where we have no opportunity to view the parties and there is no clearly “right” or “wrong” solution.
Finally, insofar as the preference of the child is concerned, I adhere to my position that judges should not “trivialize the preference of a 13-year-old child” to remain with a parent in a city where he has lived all of his natural life, and where he is close to extended family. Novak v. Novak,
Dissenting Opinion
dissenting.
I respectfully dissent.
I agree with everything this Court said in Blotske v. Leidholm,
But, in this case, the custodial parent has elected to move to a new town with a new school system, and to acquire a new spouse, all at once. It is difficult to imagine what more could be done to destabilize the lives of hеr children. While I do not suggest that custodial parents cannot move or remarry, I certainly think that the presumption favoring stability can be largely offset when such destabilizing life choices are made.
Were these the only facts presented to the trial court, I probably would not dissent. At most, the destabilizing effect of the move and the remarriage can only cancel the presumption in favor of stability, and, as Justice Levine wrote in her concurrence in Delzer, “we ought to resolve close cases in favor of continuing the custody with the custodial parent in order to protect the desired continuity_” Id. at 747. But here we have the additional factor of expert testimony recommending the custodial change. While I still might not have reached the same conclusion as the trial court, that, I am told by my new colleagues, is not the standard of review in this Court. Applying the appropriate standard, once the presumption favoring stability is cancelled by Catherine’s destabilizing choices, and the expert testimony is considered, I cannot say that I am left with a definite and firm conviction that a mistake has been made. I would affirm.