Heck v. Reed

155 viewing (Wyo.1985). Estate, court is left with a definite and firm See also In re Towle’s 261, (1939). conviction that a mistake has been made. 14 Cal.2d 93 P.2d 555 The effect Rohrich, Matter Estate 496 N.W.2d 566 provision is that a Krueger’s material will challenge Fred bases his on his longer is no handwriting, her required “undisputed testimony” regarding Krueger’s statute, under the and the will is not entitled intent to revive her will. Dobson, probate. 426; 708 P.2d at Estate, Towle’s 93 P.2d 555. county will, In order to re-execute a the tes court’s Krueger did not reexe- will, again, tator must execute the in accor supported cute her will the record and prescribed dance with the formalities is not erroneous. Haws, the statute. See Ellerbeck v. 1 Utah 229, (1953); We affirm. 2d 265 P.2d 404 Parker v. Mob 805, ley, (1979); 264 Ark. 577 S.W.2d 583

Page on Wills 23.4 Under NDCC Walle, C.J., Meschke, Vande Neumann 30.1-08-03, there is execution of a holo Sandstrom, JJ., concur. graphic will when the testator handwrites a expressing testamentary document intent See, signs writing. e.g., Estate of

Muder, 751 P.2d 986.

Fred introduced no evidence in

dicating Krueger rewrote the will or any attempt

made to reexeeute the document according statutory requisites. to the This is HECK, Appellee, Plaintiff and Krueger a case which herself autho changes rized holographic her If will. v. were, we adopt could treat the alteration as REED, Appellant. Defendant and original signature date and instrument, reexecuting thus the will. Es Civ. No. 940117. Archer, 238, tate Cal.App.3d 193 239 Cal. (2 Dist.1987); Rptr. Nielson, Supreme 137 Court of Estate North Dakota. 796, (4 Cal.App.3d 105 Cal.Rptr. 165 319 28, Feb. Dist.1980); Estate, In re Dumas’ 210 P.2d (1949); Krause, 697 Hancock v. 757 S.W.2d (Tex.App. 1988); 117 [1 Dist.] —Houston Davis,

Fenton v. 187 Va. 47 S.E.2d 372

(1948). Nor is this a case where alterations by stranger,

were made without the knowl

edge or gen consent the testator. Courts

erally disregard changes these unauthorized probate executed, originally the will as original

the extent writing is ascertain Walton,

able. Dodson v. 268 Ark. 597 (1980); Roberts, Lowy

S.W.2d 814 Dist.1984); (Fla.App.

So.2d 886 Succession Burke, (La.App.1978). 365 So.2d 858

Instead, “undisputed Fred’s testimo

ny” is that he Krueg made the alteration in presence

er’s request. and at her In such a

case, generally courts treat the alteration as

reflective of incorpo the testator’s intent and changes body

rate the into the of the will. Dobson,

Matter Estate P.2d

157 Heck, 20,

children, Rae Shana born October Reed, October Steven Shane born During portion ‍​​​​​‌‌‌‌‌​​​‌​‌​‌‌‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌‌​​​​‌​​‌​‍latter of their Cristie, relationship, the children Shane and Jeffrey, Lindquist & Jensen Patti J. parents’ in a home on lived mobile Forks, appellant. defendant and Grand Dakota, Walhalla, North farm where Jahnke, Shirley Lawonn Grand Faye par- works his father. After the Forks, appellee. plaintiff time, separated last ties for the Shana re- Shane, Steven, mained Walhalla with

LEVINE, Justice. time, Cristie to an infant moved with Grand Forks. from court appeals a district Reed legal awarding sole and judgment months, initiated After several Shane father, custody of children to their her two seeking action sole of both Shana appeal in this are Heck. At issue Shane counter-petitioned, also and Steven. Cristie § 14-09- to NDCC 1993 amendments requesting children. sole ap- meaning and 06.2(l)(j), particular, hearing during trial conducted a language is “a that there plication testimony it wit- heard from several parent who presumption that a rebuttable nesses, Cristie, Shane, including and the chil- may not perpetrated domestic violence has guardian litem. dren’s ad One trial joint custody a child” be awarded sole “[tjhis court’s of fact is that “Shane has may be over- presumption that and Cristie[,]” verbally physically abused but and convincing evidence and come clear speech are not told what conduct require of the child that the best interests However, were abusive. court’s par- as a custodial parent’s participation that during comments counsel the course ent.” hearing clarify the nature of the abuse the court, agree- the trial This is a ease where trial court as a fact. trial court found litem, guardian ad characterized with going disclosed to counsel that to find was having ability appro- parents that domestic violence and counsel for Shane having and as priately raise the children should, effect, producing concentrate on great them. It then found affection toward rebut evidence that would that, although domes- perpetrated Shane against awarding to Shane. The Cristie, tic violence court said: perpetrated domestic that a has who joint sole or pulled not be awardеd testified that hair was “[Cristie] by oth- custody was rebutted the children from her You all head.... concerned improper- er factors. the trial court Because factors about domestic violence and the ly 09—06.2(l)(j), applied we hold custody. NDCC I think on this of evidence state clearly it was for the trial erroneous ... she names has testified bad presumption against court to find that hitting pulled birthday hair and her on her joint custody to a and, sole or face punching ‘[Shane] has has violence was hit me more than once’—she testified rebutted, and remand. we reverse and to. And has been on a there dismissals I

couple charges. going think I am abuse So, FACTS find domestic violence.... ob- viously you, concerns Mr. Larivee. tu- relationship Cristie аnd was Shane’s multuous, breakups fraught with numerous began parties dat- reconciliations. The “Now,

ing in was sixteen and the focus then has to be when Cristie parties convincing mar- never clear of other Shane nineteen. evidence on, things off in his that over- together, point ried but lived favor pp. period presumption.” of two his Tr. 52- years, ] between November of comes [sic They 1990 and have two 53. November of appears clearly to have Crist- will reverse

The trial court found unless erroneous. 52(a); testimony credible as to the nature and e.g., Ludwig ie’s NDRCivP v. Burchill extent of domestic committed A finding N.W.2d However, findings, in its written Shane.1 fact is erroneous if it is induced an law, trial court characterized this violence as view of if erroneous no evidеnce “minimal” and found that “[t]here also it, support court, or if reviewing exists to little likelihood of continued violence toward evidence, on the éntire is left with a definite anyone.” significant The trial and firm conviction that a mistake has been any that “there was never abuse directed Dalin, (N.D. made. Dalin v. 512 N.W.2d 685 nor has it ob- [had] toward 1994). servable effect on them.” The trial court can if Before we the trial determine court’s ability “[b]oth noted presumption against award- appropriately, although raise the children ing custody potentially interested the more clearly erroneous, violence was rebutted is parent.” trial court relied better we must determine how the statute is to be upon parents” “the interaction prоperly applied. 09—06.2(l)(j), Section 14— children, provide Shane’s “desire to NDCC, says: needs,” for children’s Shane’s “more set- living arrangement and smok-

tled” “Cristie’s “j. Evidence domestic violence. In presumption against ing habits” to rebut the awarding custody granting rights or Shane, awarding custody parent ‍​​​​​‌‌‌‌‌​​​‌​‌​‌‌‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌‌​​​​‌​​‌​‍a who had visitation, the court shall consider evi- perpetrated domestic violence.2 dence of domestic If violence. the court appeal, argues finds credible that

On Cristie that the trial evidence domestic vi- occurred, gave weight court too little to the olence has evidence this evidence cre- therefore, domestic violence and clear- was ates rebuttable that a ly erroneous for trial cоurt that parent to find who has domestic vi- presumption against awarding custody may joint olence not be sole awarded or of domestic violence rebut- custody was child. This ted. may overcome clear and con- vincing evidence the best that LAW AND ANALYSIS require parent’s partic- that

A findings ipation parent. trial court’s on matters as a custodial custody findings specific findings of child of fact we shall cite which of fact to "4.) response questioning argument, continuing smoking 1. In at oral Cristie to allow in the counsel, appellate try who diagnosed Shane's did not the' car even after Steven was with asth- case, agreed presumably ma, that its three based of domestic violence on “5.) allowing boyfriend spend her about incidents of violence fied, which Cristie testi- evenings, including overnight with her when hair, namely, pulled that Shane her weekend, she had children for nose, punched her in and twisted ankle her "6.) inability for both to commu- [T]he severely, requiring to seek her medical treatment energy and focus and nicate more time dis- pulled ligaments. issues, agreeing trying than to resolve and "7.) promptness lack of of Cristie [T]he when adopted following 2. The trial court find- pick up she was scheduled to be in Grafton to ings guardian of the litem in the ad the children." fact: argument, parties agreed At oral “1.) problems [T]he health Steven continual guardian’s concerns under 3 and numbers 6 did having getting was resolved until those parent either that not favor number 5 had appointment Shane made an for him and took moot, present- rendered also been because Shane although him to the was doctor himself Steven Cristie, ly custody present living and his "2.) girlfriend bring lives with Cristie would occasion Steven them. Nonmarital cohabita- adequate clothing, parent automatically without i.e. it cool require was a tion does not day any jacket he did not or warm Lapp to the other on, clothing put (N.D.1980). Lapp, 293 v. N.W.2d 121 “3.) parents failing I seat observed both to use children, transporting belts in the car while 160 prompted purpose ar- enactment.” visitation that

show protects the rangement best Id. family or household other 14-09-06.2(l)(j) has a familiar and Section is the victim of member Schestler, lengthy history. v. See Schestler fact the abused ... The that

violence.3 (N.D.1992) [tracing the his- 486 N.W.2d from the effects suffers tory of the statute’s enactment and subse- grounds denying not be abuse Schestler, custody....”4 (Emphasis supra, a quent amendments]. added.) upheld this court a trial court’s children, two minor award of a is a

Interpretation statute Kristofer, Schestler, law, appeal. fully reviewable on Trista and to Charles question of (N.D.1992). Beilke, N.W.2d 589 despite State v. their evidence Charles abused 14-09-06.2(l)(j) of section mother, her, Our construction Wanda, by hitting shoving of statuto guided by well-established canons inappropriately touched he Wanda’s See, e.g., v. Di ry interpretation. Olson majori- teenage daughters’ two breasts. The (N.D. DOT, rector, N.W.2d 258 N.D. court, ty, agreeing with the trial 1994). duty, a stat when construe Our any statutory presumption against аwarding ute, legislature’s intent. to ascertain Charles, Pippin, State 496 N.W.2d violence, sufficiently rebutted because: from the That be ascertained face intent 1) to- Charles had never directed violence unambiguous of a statute. NDCC clear Beilke, Kristofer; 1-02-05; 489 N.W.2d ward Trista statute, given words are When we construe 2) Charles had more stable home envi- ordinary commonly under their and plain, ronment; meaning, consideration of “the with stood 3) There was more love and affection be- statutory words, the con ordinary sense enacted, they were and tween Charles and the children than text in which unit, family 14-09-06.2(l)(j) permits permanence, § e. of the 3. also NDCC per- to a third existing proposed award "suitable court to or custodial home. necessary protect the welfare of the "to parents. son” if f. The moral of the fitness However, portion of the statute is child." g. physical The mental and health of the appeal. in this The trial court found not at issue parents. parents ability to raise the that "both home, school, community h. rec- appropriately” no one raises the ord of the child. third-party placement. necessity of a preference i. if The reasonable of the deems to be the child of sufficient 14-09-06.2(1) following lists the Section addi- intelligence, understanding, experience by may be considered tional factors which preference. express original custody proceeding: trial court in custody, purposes of the best interеsts “1. For of the child is determined and welfare interrelationship, k. or The interaction and of all fac- consideration and evaluation court's potential for interaction interrela- affecting welfare the best interests and tors any person tionship, of the child factors include all of the the child. These in, present, frequents house- resides or applicable: following when significantly hold of a and who love, affection, and other emotional a. The child's affect the best interests. The court existing parents between the and child. ties person's history consider that of inflict- shall disposition par- capacity and b. The inflict, harm, ing, tendency physical or love, affection, give ents to assault, bodily injury, or the fear of guidance and to continue education assault, harm, bodily injury, per- or on other the child. sons. disposition provide c. The making allegations l. made false not food, care,' clothing, the child with medical faith, good parent against one recognized per- remedial care or other other, harm to a child as in sec- defined lieu under the laws this state in mitted care, tion 50-25.1-02. and other material needs. medical Any m. other factors considered length d. of time the child has lived in particular to be satisfactory relevant and the a stable desirability maintaining continuity. environment custody dispute.” meaning the chil- between Wanda and statute’s existed accord with its new Beilke, terms.” State dren; 489 N.W.2d at 592. Because the statute was аmended after this 4) relationship” There was an “adverse be- predecessor court construed the statute younger tween the children and Tara Schestler, presume Tosha; legislature responding to that construc- 5) daughter mother and her Charles’ Sutherland, Statutory tion. See Construction providing would assist care for the § 22.30. children; and presumed “The to know the 6) some Wanda demonstrated lack care prior original construction of terms in the safety. and concern for the children’s act, and an substituting amendment a new Id. at 512. term phrase previously or con- one Schestler, statutory provisions In two were judicial strued indicates that con- ... issue, pre-amended NDCC 14r-09- struction of the phrase former term or did 06.2(l)(j), which said: not cоrrespond with the intent “j. The existence of domestic If violence. and a interpretation different should given phrase.” the court finds that domestic violence has Suther- the new term or land, occurred, supra. specific the court cite shall find- ings of fact to show Schestler, considered the arrangement protects visitation best rebuttable created under sec- family child and the or other 14-05-22(3), NDCC, tion as we oth- consider household member who is the victim of presumptions. er rebuttable Rule Under any domestic violence from further harm. 301(a), NDREv, a rebuttable subdivision, As used ‘domestic vio- substitutes for evidence of fact “until the lence’ means domestic violence as defined trier of fact finds from credible evidence that in seсtion 14-07.1-01.” exist.” presumed the fact does Schestler, 14-05-22(3), and NDCC Thus, said: 486 N.W.2d at 512. law, prior our “In granting rights of of proving bore ‍​​​​​‌‌‌‌‌​​​‌​‌​‌‌‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌‌​​​​‌​​‌​‍burden visitation, the court shall consider evidence preponderance of the evidence that best the of If domestic violence. the court finds interests of the children would be met credible evidence that domestic violence in placing custody. them the perpetrator’s occurred, this evidence creates the re- Zins, Estate Zins See ex rel. Kelsch v. 420 presumption awarding buttable that custo- of (N.D.1988). However, N.W.2d 729 under the dy granting visitation to the abusive 14-09-06.2(l)(j), amended of version section party is not in best the interests the custody presumption to child.” perpetrated a who has domestic vio- Schestler, See 486 N.W.2d 511. The ma- may only lence rebutted clear jority reasoned that while these statutes re- convincing evidence. quired a trial court to consider domestic vio- lence, convincing higher Clear and evidence is a important that evidence was no more proof requirement preponderance than than the the other that factors the. court must In See Interest the evidence standard. making custody consider when its decision. Kupperion, (N.D.1983) Id. majority 331 N.W.2d 29 concluded that neither the (Sand, J., concurring specially and statutes nor their dissent- histories “indi- M.L., In ing); Interest 239 priority cate N.W.2d 289 a for [domestic violence] over (N.D.1976). specifically Id. statutory requiring In other factors.” presumption only by be rebutted clear and Following Schеstler, legislature amend- evidence, convincing legislature imposed 09—06.2(l)(j), ed section 1993 S.L.N.D. ch. higher on perpetrating parent a burden and, 2,§ doing, in significantly so required previous than that under our law. changed language. presume its We that existing question “[w]hen the amends an is what it rebut does take to statute, change against awarding custody it indicates its intent to stability of child’s relation upsetting Under violence? perpetrator

a statute, court, finding Id. at 687. ship after with the custodial prior violence, only spe- heightened make a standard have also relied on needed We domestic custody in arrangement necessity exceptional circumstances that cific § 14- custody party the child.” NDCC chal cases third protect[еd] “best 09-06.2(1)© custody lenges biological parent The Schestler that a trial phrase stating biological parent’s to mean construed this that even it believed only cite to the reasons paramount right court need of a child must of the child would be yield exceptional best when circumstances indi arrangement. by the custodial served re that the best interests of cate Schestler, of this The result 486 N.W.2d 509. appro in an quire placing the child’s of domestic vio- proof Glaser, that construction was priate party. E.g., third Patzer weight than other carried no more lence Although an N.W.2d 740 and, indeed, statutory could be over- factors parent’s right to of his or abusive combination of the by any one or a come substantially expаnsive, child more her statutory factors. id. other protected third-party’s that of a more than pro right, third-party we believe the cases (j), leg amending subsection require illustration of our law’s vide another placed proof the burden islature exceptional cir certain instances of ment prove that best interests perpetrator custody. justify cumstances award require that the of the children sense, compelling excep it In a real takes § parent. NDCC 14-09- be a custodial 14-09- tional circumstances NDCC “require” is a 06.2(l)(j). use of the word 06.2(l)(j) award legislative signal that the clear violence, certainly something domestic against awarding custody to a vio customary weighing more than the and recit merely perpetrator is not overcome lence the factors 14-09- found NDCC slightly in the balancing other factors 06.2(l)(a) (l). (k), (i), Compare through “require” is a favor. The word perpetrator’s Schestler, 486 N.W.2d 509. “in denoting compulsion; means to word New upon” sist or “demand.” Webster’s argues the trial court (2d College Dictionary, World misapplied the statute Ed.1980). only legislature intended not presumption against awarding custody to by parent that domestic violence committed Shane, parent who has domes parent’s claim for weigh heavily against that violence, says tic was rebutted. She custody, that it be overcome but personal trial court’s reliance on Shane’s sta convincing best clear evidence bility maturity,5 parents’ pres demand that interests оf the children caring ence on the farm to assist him as violence serve Steven, greater and de Shana and Shane’s custodial provide sire to for the children’s needs merely weighing of ordi amounted to a the Establishing that the best inter custody nary factors. Under NDCC require perpetrator’s par the child ests of 09-06.2, § original custody parent is akin to the ticipation as a custodial may dispute, properly custody modification cases. trial consider standard used in (N.D. Dalin, E.g., maturity parties disposi their Dalin N.W.2d 685 the and v. 1994). food, provide modify to to the children with cloth deny We a motion tion will § 14-09- transferring ing, the child’s and medical care. NDCC unless the reasons for (c). 06.2(l)(a), (b), addition, stability justify the compelling are to sufficiently impermissible § living 14-09-06.2(l)(j) ar- NDCC makes it The trial court that Shane’s deny rangements parent “the abused and should so to because were "more settled (cid:127) To to the suffers from the effects of the abuse.” continue” but made no as reason living arrangements living arrange- were instability extent that Cristie’s for the Cristie’s by committing hearing domestic vio- that she destabilized lence, ments. Cristie testified at weigh against it is clear error had moved out of Shane’s residence least living arrangements. twice due her unstable to incidents of domestic violence. members, parties’ family ly units homes household but would have potential parties, such limiting phrase interaction third used a more such as “child weighed be grandparents, § should abuse.” See NDCC 50-25.1-02. (k). (e), However, (l)(d), trial Id. court. may judicial A court takе notice § contrary plain language 14-09- legislative facts interpreting when a stat 06.2(1)© per- clear legislative intent ute, particularly when ground the statute is judge parents mit a to find that public policy. ed 2 McCormick on Evi ability raise affection to dence, §§ 4th ed. 331. See State then, appropriately find Patzer, (N.D.1986) 382 N.W.2d n. 4 statutory presumption against awarding [taking judicial notice of facts in perpetrated who has reviewing constitutionality of the state’s by weighing domestic rebutted compulsory school attendance be laws]. We perpetrator’s favor some of these remain- § 14-09-06.2(1)0) lieve that NDCC reflects a customary ing best-interests factors. Under legislative finding that domestic violence has 14-09-06.2(1)0), statutory pre- section may аn adverse effect on children which be sumption against awarding custody to a presumed present in whenever violence is of domestic violence be re- household. butted, parents, only by in the case of fit two compelling demonstrating circumstances legislature, amending 14- section require best interests of the children 09-06.2(1)0) surely of, react- aware placed perpetrator. to, be growing body of research which teaches that children are victimized conjunction that in Shane contends climate of violence created domestic vio- factors, customary consideration of the parents, they lence between their even if the trial court’s nev targets Eighty- not direct of the abuse. er directed violence at the children nor had it percent of seven children know about them, had an observable effect and that incidence of domestic in their homes. smoking posed potential Cristie’s harm to Walker, Syn- Lenore The Battered Woman Steven, child, sufficiently their asthmatic re (1984). drome 60 of children presumption against awarding but the custo violence, witness seeing either it or dy who has it, hearing though parents may even their disagree. violence. We they unaware that have done so. Barbara interpret 14-09-06.2(1)0) We NDCC as Hart, State Codes on Domestic Violence: precluding weighing a court from an absence Analysis, Commentary and Recommenda- against of domestic violence the children as tions, (1992); 43 Juv. & Adele Fam.Ct.J. pre- one of the factors which rebut Harrell, Family A Guide Research on sumption awarding custody to a Violence, The Urban Institute perpetrator of domestic violence. Domestic harm, However, “physical bodily violence is defined as children suffer harm even assault, injury, they the infliction of fear of when do witness violence. The harm, bodily injury, Congress recognized imminent in United States family assault ... on ... or household mem- herent harm children whose Thus, bers.” perpetrate part NDCC 14-07.1-01. domestic violence on their 14-09-06.2(1)0), presumption section the ners when the Senate the House of against perpetrator Representatives unanimously passed of House domestic violence arises whenever is violence Cоncurrent Resolution 172 October of 1990, any of directed at member a household or which recommended States that family, not when child is the direct of of physical “credible evidence abuse legislature statutory victim of the violence. If the spouse should create a intended a distinction be drawn it placed between the is detrimental to the child to be impact adverse of spouse.” the violence directed at a in the of abusive Sess., H.Cong.Res. Cong., but not a not would 101st 2d (1990). Cong.Rec. passing defined “domestic violence” as harm to fami- H8280-02 this resolution, Congress legislative proper person find- to have of children made a seriously directly who do not are and detrimen- because children ing that “even are sрousal tally by exposure affected abuse affected who witness experi- in their homes and family of climate violence uses violence to exert control over fear, shock, long-lasting impair- guilt, Developments ence the Law: members. self-esteem, impairment de- of Violence, of Legal Responses ment Domestic socialization skills.” velopmental Harv.L.R. 1608-11 of do- H.Cong.Res. 172. of victims Children legislature We know the does not also suffer when the abused mestic unjust Thomp or intend absurd results. See primary care- parent, generally their who is Danner, son v. 507 N.W.2d 550 taker, proper attention to the cannot devote Yet, interpret 14- it would be both to section par- of the abused needs because children’s 09-06.2(l)(j) рermitting as self-esteem, depression, low and low ent’s against awarding custody physical energy, not to mention obvious re domestic violence can injuries violence which from domestic butted because domestic violence hospitalized. render victims bedridden member, perpetrated on another household Violence, Domestic The Czapanskiy, Karen particular legislature child. The not Les- Family, Lawyering Process: presume any courts do intended that on Gender Bias in the sons from Studies negatively impacts mestic violence the best (1993). Further, Courts, Fam.L.Q. 247 Therefore, of the children. it was placed in the of a weigh trial erroneous at risk. of violence remains More domestic any “there fact that was never abuse fifty perpetrators who batter percent than of directed toward the children” as one of the spouses their children their will also batter rebutting presumption against factors usually pre- pattern spouse of and the abuse awarding custody domes Hart, supra. child. cedes the abuse tic violence. Therefore, finding that the court’s on no violence had observable effect Shana is The court also that “there Steven must be viewed the context little likelihood ‍​​​​​‌‌‌‌‌​​​‌​‌​‌‌‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌‌​​​​‌​​‌​‍continued violence toward findings Congress and the stat- anyone.” mystified to on We legislature utory of our amendments finding. facts the court based this It is long-term effects of violence in state possible that the court believed that Cristie inter- to children’s best the home are adverse provoked or deserved the abuse. ests. However, reasoning flies in the face of things perpetrators know about enacted section 09—06.2(l)(j) domestic violence. to ensure that domestic vio seriously by the en lence'be taken courts pattern Domestic violence “a assault- grave responsibility of mak trusted with controlling behavior” committed ing custody decisions. statute is intend one household member another. myths that: ed to counteract the al., Ganley, Impact Anne et of Domestic crime; violence is a serious on Violence the Defendant and the Victim violence; provoke victims or deserve Courtroom, Domestic Violence: The Cru- habitually exaggerate lie victims Judge cial Role in Criminal Court violence; extent A Edu- Cases. National Model Judicial private family mat domestic violence cation, Family Violence Prevention ter. Fund, 1991. Domestic is not caused life, Report Supreme perpetrator’s stress See Final Mich. alcohol consumption, particular propen- Court Task Force Gender Issues in the or a victim’s (1989); Harrell, sity Ganley, supra; push perpetrator’s Courts see also Cza- to a buttons. 09—06.2(l)(j) Rather, panskiy, supra. a supra. NDCC domestic violence is pattern gaining public policy perpe- reflects our state that a learned of behavior aimed compliance. Ganley, supra. generally trator of is not a a victim’s domеstic violence

165 by Perpetrators pat trumped victim-parent can “unlearn” the that the fact however, violence; this re tern of domestic smokes. quires changing motivation for sufficient Some courts have relied on the effects of Ganley, supra.

their violent behavior. The secondhand smoke on an asthmatic child to episode most recent of violence domestic tilt the balance in of one favor Liz years prior Shane occurred less than two Lizzio, 701, zio v. 162 Misc.2d 618 N.Y.S.2d hearing. no introduced Shane Fam.Ct.); (N.Y.City Wilk, 934 Wilk v. 781 hearing evidence at the that he had consid (Mo.Ct.App.1989); S.W.2d 217 v. Mitchell participated any ered or form of treatment Mitchell, 1991 (TenmApp.). WL 63674 Oth program counseling related domestic ers refused to аward to a non rehabilitation, proof of violence. Absent such y parent smoking modify an original custod conclude, it was erroneous to as the ground award that par on the custodial here, long judge trial did that will no Cooley Cooley, ent smokes tobacco. v. 643 a er use domestic violence as means of con Cir.1994); (La.App. So.2d 408 3rd In re Mar trolling partners.6 his intimate Diddens, 850, riage Ill.App.3d 255 625 of (3 Dist.1993); Helm, 1033 N.E.2d Helm v. Next, we turn to the trial court’s (Tenn.App.). 1993 21983 Regardless, WL smoking of consideration Cristie’s habits as any domestic violence was a factor in one of the factors to rebut the eases which the trial court awarded against awarding custody a perpetrator nonsmoking parent, based 14-09-06.2(l)(c) domestic violence. Section passive effects smoke on an asthmatic permits court disposi a trial to consider the Lizzio, 701, child. 162 Misc.2d 618 N.Y.S.2d tion of care for child’s medi 934; Wilk, Mitchell, 217; 781 S.W.2d 1991 addition, cal needs. WL 63674. We are confident that these any consider and all it factors deems relevant analyzed courts would have the cases differ 14-09-06.2(l)(m). Therefore, a trial ently they nonsmoking found that considering err in does not the effect was a vio domestic any parental habit on the best lence. the child. trial court that approach a num taken Another jurisdictions, that pres facing smoker and she smokes ber smokes, asthma, ence of guard the children. Shane and the and a child who suffers from ian ad litem testified that opt ordering Steven has asthma is to favor of passive aggra prevent smoking presence that or secondhand smoke disagree cutting parent’s vates his condition. We do not before off that custodial Andrews, potential rights. trial court’s consideration of the visitation v. Shumaker (Del.Fam.Ct.); deleterious health effects tobacco smoke 1992 510196 v. WL Badeaux child; Badeaux, however, on an asthmatic (La.Ct.App. we do not 541 5th So.2d 301 Cir. 1989); believe Unger Unger, intended N.J.Super. v. 274 presumption against awarding custody of 644 A.2d 691 We believe that this ' sensible, children to a approach ordinarily of domestic violence more suggest percent sought Scholars that without intervention five of men who treatment program, likely court or treatment it is battering abusing behavior admitted more than perpetrator of domestic will continue partner). cf., Ange But Lenore E. &Walker on? la relationships. E.g., be violent in consecutive Browne, Gender and Inti Victimization ah, Impact Ganley, Anne et of Domestic mates, (1985) J.Personality 177 [at least half Violence on the Defendant and Victim in complete programs of batterers who treatment Courtroom, Domestic Violence: Crucial Role part continue their violent behavior with new Judge in Criminal Court Cases. A National Although ners]. treatment is not a fail-safe rem Education, Family Model Judicial Vio circumstances, may, edy, support in certain Fund, 1991; lence Prevention F. Catherine likely is not Klein, Orloff, Leslye Providing Legal E. Protec State, occur in future. See Morstad Analysis tion for Battered Women: An of State (N.D. 1994) (Levine, J., concur N.W.2d Law, Statutes and Case 21 Hofstra L.Rev. ring specially). (1993) (citing ninety- study indicating fact violence, necessary agree I the that the a with a in a case of domestic not not witness violence does A trial child does legislative of intent. accommodation weigh in of the abuser. Neither does court, ill of sec favor about the effects concerned child, weigh fact is favor upon asthmatic the the child not abused ondhand smoke abuser, par although the we are there nonperpetrating of relieved prohibit the should first smoking physical no abuse of the child. Notwith- allowing is who from or ent smokes NDCC, standing 14-09-06.2(l)(j), the child. section presence others to smoke analogous grounds fоr abuse of the child would be comports with our Our conclusion abuser, terminating parental rights of the concerning parental obstruction case law 27-20-44, NDCC, placing ator least parent. section rights of the noncustodial visitation (N.D. custody non-abusing Leidholm, of the child with 487 N.W.2d 607 Blotske v. 14-09-06.2, NDCC, 1992). [oth- Although parent. visitation section obstruction of determining the for child’s best the child and the er factors may pose harm imposing parent, opt interests]. first for noncustodial upon parties, rigid schedule a visitation lasting effects of Because custody outright. Id. modifying before or a not the child violence on whether violence, or views the as discussed is abused NDCC, 14-09-06.2(l)(j), re Section majority opinion, provisions I note the in the public policy of our state a flects the 14-09-06.2(l)(k): of section generally violence is perpetrator of domestic interrelationship, or “The interaction and custody and proper person a to have not potential interrela- for interaction and awarding parent any person tionship, of child with who may custody overcome of the children be in, present, frequents or resides circumstances, pres not compelling signifi- parent household of and who case. ent this cantly affect child’s best interests. statutory The trial court’s person’s his- court shall consider against awarding custody of inflict, tory inflicting, tendency perpetrator of domestic violence children to harm, assault, injury, bodily physical erroneous, clearly and ac- overcome is harm, bodily injury, fear cordingly, and remand we reverse assault, persons.” on other to reconsider its award of trial court continuing parent A custodial light opinion. this relationship perpetrator expect to have violence should J., MESCHKE, concurs. to the that child transferred non-custodial convincing there is clear and unless Justice, WALLE, Chief concur- VANDE evidence that best ring in result. participation as a cus- require the continued It appears I in the me concur result. todial major- least Legislature, or at as the ity fol- construes amendments SANDSTROM, Justice, concurring in the Schestler, lowing decision in Schestler v. result. (N.D.1992),requires that N.W.2d sending I in the concur result of case perpetrator of domestiс violence be specific trial court for back custody of the other awarded unless appropriate. and reconsideration as be A unfit. have made clearer surely The trial could domestic violence findings, purposes fit intended cannot find other compelling Rather, necessary high evidence to award it will level of the statute. of domestic violence. failings of the rather to detail the abused virtues, exist, majority’s imputation agree if I with the they of the abuser. cannot than the thoughts ill to the trial of motives ill agree not I with the effect Whether or majori- judge. agree I do not with the legislation, its I understand rationale. cigarette ty’s trivializing the harm ‍​​​​​‌‌‌‌‌​​​‌​‌​‌‌‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌‌​​​​‌​​‌​‍of smoke Randy an asthmatic

to child. SEVERSON, Plaintiff Appellee, heavily supplements rec- agree legislative I facts ord. be consid- interpret ambiguous ered an statute. HANSEN, Carla Defendant Evidence, §§ 4th ed. 331. McCormick Appellant. majority goes beyond far use this to evidentiary “articles” to create facts. The Civ. No. 940163. majority’s “experts” tri- were never called at al, qualified were never or cross-examined. Supreme Court of North Dakota. 702-705, majori- Rules N.D.R.Evid. The Feb. ty heavily relies on an article Anne Gan- ley. Many “facts” Ganley from are facts, they evidentiary

not are Though they appealing,

facts. are some record, may may not be appear

true. Some to reflect ster- inflexible

eotyping. reading

fairA of the record indicates the totally accept did not

Reed’s version of the facts. The trial court

found minimal domestic violence

Heck, and concluded was sufficient presumption.

create the The trial court then been overcome. apol-

The record —a from letter Cristie Reed

ogizing hitting him—also Shane Heck

reflects domestic her him.

The record further reflects that a medical pres- smoking

doctor told Cristie Reed of her

ence asthmatic child his threatened Although

health. swore she under oath she pres- not smoke in asthmatic

did child’s so, permit

ence nor her others do two of seeing

own witnesses testified her and presence.

others smoke in child’s Under 14-07.1-01,

N.D.C.C. in- “physical Smoking

cludes harm.” in the

presence of an asthmatic child health whose thereby threatened well constitute does, judge’s If it

such harm. necessary

order should not be create

obligation stop smoking pres- the child’s

ence.

NEUMANN, J., concurs.

Case Details

Case Name: Heck v. Reed

Court Name: North Dakota Supreme Court

Date Published: Feb 28, 1995

Citation: 529 N.W.2d 155

Docket Number: Civ. 940117

Court Abbreviation: N.D.