*1
Thomas J. Plaintiff Appellee, RYAN, Woods, Jennifer f/k/a Appellant.
Defendant and
No. 20040227.
Supreme of North Court Dakota.
May 2005.
Rehearing Denied June *2 (argued),
Paul Probst Probst Law M. Firm, Minot, N.D., for and plaintiff appel- lee. Bergman (argued)
William E. and (on brief), & Charles G. DeMakis Olson Burns, Minot, P.C., N.D., for defendant appellant. SANDSTROM, Justice. Ryan, formerly as
[¶ 1] Jennifer known Woods, appealed an amended judgment changing child in a di- brought by vorce action Thomas J. Woods. affirm. We stipula- In their accordance with tion, Woods, Ryan, who then in 2000. who was then divorced (2) (1) divorce; judgment granted Woods joint legal custody of granted parties (3) child; Ryan physical cus- granted their tody of and gave the child Woods liberal (4) visitation; to pay ordered Woods child (5) month; per support of listed $255 Ave. Ryan’s address as 1105 5th NW Minot; (6) indicated was unem- (7) parties’ prop- ployed; and divided erty and debts. moved amend Woods him judgment grant
the divorce supported parties’ Woods motion a brief and an affidavit assert- (1) parties’ ing, among things: other his David grandparents, “lives Rust.” “does not reside and Barbara residence, and unknown where at this it is (2) resides;” He his son can (3) home; his with stable environment permanent has no working, “is not jail on address, has' several offenses, including occasions various (4) activities;” “I have the drug related skills, desires, ability care necessary child, I feel it my [is] his best Her supported child]. have me, opposed raised as child]. interests Child support [the does grandparents.” begin to [the his cover needs. Sad- child’s] *3 ly, and her to appear Jennifer mother with an Ryan responded affidavit years content for over three for Jennifеr (1) things: stating, among other “Since trial, parents. to live off At her Jennifer entry Divorce, of Judgment of she has pregnant. Jennifer that testified lived and continues live with her parents she has a number of her fines and that else, in Minot and has resided nowhere pays mother her fines for in return her (2) 2002;” except period for a in one-month for some work does around the significant “There has been change no of Clearly, get house. Jennifer a needs to (3) divorce;” circumstances since “Alle- job child], support so she can better [the that gations custody she has turned over herself, her baby. and new Her three parents son to and her does not reside years of a unemployment chronic is ma- parent[]s[’] in her home are completely terial change circumstance when oth- (4) false;” groundless and Them child “has er taken into factors are account. in satisfactory lived a stable and home that Jennifer denied she turned over environment with Jennifer and par- ents;” (5) care of parents.... to her allegations [the child] “While finding While not turned jail affidavit that have been in has [Woods’] correct, complete any- care [the child] are the offenses were for over driving one, insurance, the Court does find that suspension under without Jennifer’s grandparents no possession and one time have doubt drug (6) significant [ ] had paraphernalia;” [the and Woods “has involvement with day on a day child] visitation.” near basis. regularly Ryan’s exercised averring, mother filed an among affidavit support position further of his (1) things: Ryan parties’ other and the there a change has been in circum- child have with her and her lived husband stances, pointed Tom to Jennifer’s ar- divorce, since the time of except rests in ... convic- numerous (cid:127) (2) 2002; month in “has not arrest, tions and time of involved—even custody turned over [the to me child] as to charges support dismissed—do not my husband, nor has she moved out of position regard overall (3) home,” “has, our not regu- Woods material change issues. circumstances larly exercised visitation.” This point amplified by Jennifer’s years three of chronic unemployment district court issued an order repetitive early morning prima Woods “has established a coming on arrests [the] heels facie casе for modification.” After chronic unemployment ap- and then her hearing, the court issued memorandum marriage secret to Chris and order. The court found a material only to be followed a short time later change of circumstances: separation and her to her return chronically Jennifer has been unem- ents’ home. August ployed since the 2000 divorce. has had spasms employment
She
Cumulatively,
taking the above factors
period
of August
January
account,
2000 to
into
this Court finds
has
2004. The evidence was uncontested
been a
change
material
of circum-
that Jennifer
unwilling
has been
or un-
stances.
conclusion
supported
This
step
able to
up
help support
Tom’s actions since the August,
[the
Kelly Kelly,
of review.”
marriage
which include his
dard
divorce
¶ 13,
For the best and welfare of the child is de- interests making allegations l. The of false by the court’s termined consideration faith, good by made in one parent affeсting and evaluation of all factors other, against the harm to a child best and welfare of the child. interests as defined section 50-25.1-02. factors include all the following These m. Any other factors considered applicable: particular court to be to a relevant love, affection, a. and other emo- custody dispute. existing tional ties between the ents and Improvements capacity disposition b. The life of a noncustodial seeking to love, give the child affec- modify not, a child order “would tion, guidance and to continue themselves, a significant constitute the education the child. Kelly v. Kelly, circumstances.” *5 disposition c. the 37, ¶20, The to 2002 ND 640 38. A par N.W.2d food, provide the clothing, child with ent’s unemployment may be сonsidered. care, ¶ medical or other remedial care Krank, See Krank v. 2003 and recognized permitted under the (evidence 669 105 supported N.W.2d the of this lieu of laws state in medical trial findings court’s under N.D.C.C. 14- care, and other material needs. 09-06.2(l)(c) where “the court found that the length d. the evidence shows the father The time child has child’s has a satisfactory history employment in a good paying jobs lived stable environ- at desirability and good provider ment the of main- and is a while mother is taining continuity. currently unemployed”). unit, e. permanence, family The as a “In a modification proceeding, the best existing or proposed custodial interests of child must be gauged home. against backdrop stability of the
f. parents. The moral fitnеss of the custodial g. mental and physical parent.” Leidholm], The health of Blotske [v. parents. [607,] [(N.D.1992)]. N.W.2d “[I]f previous custody placement was based home, school, h. community upon parties’ stipulation of the consideration of the evidence and court i. preference The reasonable findings, made the trial court must con- child, if the court deems the child to evidence, sider all relevant including intelligence, be sufficient under- pre-divorce activities, conduct and standing, experience to express making a considered appropriate preference. custody decision in the best interests of j. Evidence domestic violence..... Welch, the children.” Welch k. interaction and interrelation- (N.D.1995). N.W.2d 312-13 potential for ship, or interaction Kelly, case, at 22. interrelationship, previous this any in, person who custody placement resides was based on the par- present, or frequents the household ties’ stipulation. financially Ad- home once she is stable. factors con- Of the thirteen 14-09-06.2(1), had ditionally, Tom has a solid and close N.D.C.C.
sideration under d, h, parties’ a, b, e, relationship with ex- [the child] found factors the trial court Tom was TDY cept [ ] when on or Jenni- party, favor either while and m do not making appear fer was what to be i, apply to this case. j, and l do not f,c, somewhat lame excuses to g part the most that factors The court found Woods, put child’s] off visitation with his [the explaining: favor Thus, father. this factor and her de- Jennifer compared When greatly case diminished. parents, Factor “c” fa- her pendence on his earnings from em- Tom his vors in her Ryan asserted brief that lifestyle shines Tom’s stable ployment. court erred when failed to “[t]he compared “f” undér Factor impact take into consideration the which very hectic 2003 saw Jennifer’s splitting would have modifying a number of times-even her arrested parties’ from unborn his [the child] .sister.” marriage her night, at secret However, late it under considered parents^] home out move m: factor and move spouse
separate from may Factor “m” to this applicable than month later. back home less regard [the case half-brother/sister “g” favors Tom since Jennifer Factor by way of most child] has Jennifer’s years some 3 of chronic experienced However, no evi- pregnancy. recent and in less than a 30- unemployment provided as to such and dence was such she moved out day period against could cut factor well house, pregnant became parents^] *6 inability due her neces- by unemployed spouse, and found her end, In the [the child]. sities and necessary to move back home finds Factor “m” does not favor Court spouse. thereby from her new separated party. either certainly has to Such a series of events testified, Ryan among other 14] [¶ mentally any a toll sane and take only of things: support is her source Child a toll was noted in strong person. -Such income; money for gives mother her her Januаry at Jennifer’s demeanor daily expenses; moved out of her she hearing. a little under a month” “[f]or ents’ house Ryan:, k found factor favors court married, got Ryan and Chris when she out oh our by living Factor “k” it didn’t work “but is favored in;” she has been so moved back parents^] grandpar- and own we through her year hus- little over parties’ married a interaction with ents[’] [the during that unemployed been It that a trial band has is well established child]. husband; time; separated from court, she part as a best interest under child, driving has convictions for stability of said three must take she charged has twice suspension; she been with the custodial relationship insurance and has driving in a without account modification with into driving; exhibition she charged with Testimony was received been proceeding. Id. at 1:15 with criminal mischief charged good has a that Jennifer a.m.; to a 1:53 a.m. pleaded guilty has she she been [the child] she Yet, .charge, for which drug paraphernalia only primary giver. care uncon- his fine, has her mother received a which testimony was received Jen- tested not a valid driver’s she does have parents’ paying; move of her would out nifer license; WALLE, Justice, charge and the criminal mischief VANDE Chief concur- driving-under-suspension charge and a ring specially. dropped. were I [¶ concur in the 20] result reached Ryan’s mother testified that she majority. understand Justice Mar- ... “daughter found was married out ing’s concern that some the rhetoric of and then we [t]hrough paper asked the trial court leads one to conclude this her,” that Mr. never lived matter was treated an initial custody as Ryan’s grandmother her home. testified determination rather than one modifica- “four she visits the house where lives existing custody tion of an order. As the week,” or five times does know notes, majority opinion we have held that Ryan’s unborn where father where the initial custodial order was based once, met him lives and has and she upon stipulation parties, rather does not know where married. than consideration the evidence and In light Ryan’s of the evidence of findings, the trial court must consid- unemployment continued and secret mar- all making er relevant evidence its deci- riage, the trial court’s of her assessment upon modify sion the motion to custody. demeanor, Ryan’s the evidence ear- Kelly ¶22, Kelly, 2002 ND ly morning criminal arrests for mischief However, N.W.2d 38. that does not mean possession drug paraphernalia may the trial court ignore two-part her numerous convictions and arrests for analysis required under N.D.C.C. 14- suspension, driving under driving without 09-06.6(6), i.e., first, whether material
insurance, driving, and exhibition there is change of and, circumstances exists sec- supporting evidence the trial court’s find- ond, exist, if a change one does whether c, ings f, -that consideration required in the best interests the child. 14-09-06.2(1) g under N.D.C.C. favors Woods, which, against balanced Although some of findings finding court’s k Ryan, that factor favors may the trial court lead conclude supports the court’s that “a applied trial court the “best interests” in. necessary thе best inter- *7 as in standard an initial proceed- custodial ests of’ parties’ have not We ing, trial citing court in legal to the left with a definite and firm convic- been authority in its opinion memorandum tion a mistake has been made. con- We clearly proper legal enunciated the stan- clude clearly the trial court’s not I dard and read trial court’s in findings erroneous. light. that
HI WALLE, [¶ GERALD 22] W. VANDE [¶ The judgment 17] amended of the C.J., concur. district court is affirmed. MARING, Justice, dissenting. KAPSNER, [¶ 18] CAROL RONNING J., concur. I [¶ respectfully 23] dissent. I am opinion that the trial The WILLIAM court’s decision to Honorable A. NEUMANN, amend the judgment custody a to change member'of the Court when heard, this resigned Ryan case was from effective minor child to Woods was 14, 2005, March in participate clearly did erroneous. misаp- The trial court this decision. facts, plied the law to the am left in change a mis- material circumstances. The firm conviction with a definite Ryan’s its conclusion made. trial court based take has been three unemployment years, chronic 2000, trial August On [¶ 24] “nu- parents, financial reliance on her judgment of divorce based court entered a in- and time of merous convictions arrest parties awarding stipulation of the on the volved,” marriage and Woods’ recent minor child to custody of the physical lifestyle. After concluding stable minor The Ryan visitation Woods. in change had been a material circum- old, having months child was seven stances, “ex- proceeded the trial court Ryan, the December 1999. born on change сustody a in is nec- amine whether years old at the time eighteen essary to of [the serve best interests divorce, having been born on Febru in It this the trial point child].” at that ary The record reflects at 1982. analysis I believe the court’s mi Ryan divorce the time misapplied the law. living were with her nor child unemployed. that she was custody Modification of of child also reflects 14-09-06.6(6). § is set forth in N.D.C.C. parents from child lived with her and her If the there has been trial court concludes up to the time the time of the divorce circumstances, in change a material brought the motion to amend the Woods change custody must decide whether custody, except for judgment change necessary to serve the best interests and the minor month 2002 when she 14-09-06.6(6)(b). the child. N.D.C.C. аpartment an live with child moved to stated, “neces As we have the use of husband, Ryan. Chris new sary” the codification the second for a moved [¶26] Woods two-step signal did not step of test was, custody on October departure from standard embodied time, twenty-one years age. at that Holtz, case our law. Holtz allegation motion was an of Woods’ basis (“This 105, 10, part 595 N.W.2d the minor had abandoned statutory essentially formulation grandpar- of the maternal to the two-step previously approach tracks alleged chronically ents. He also she was deciding this used Court filed, After the motion was unemployed. . case.”) N.D.C.C. Since should additionally alleged custody Woods 14-09-06.6(6) effective, we became because of her traffic violations changed prior our have continued reference possession and criminal conviction law, substi sometimes case and we have alleged he drug paraphernalia. Woods *8 “compel” or for the stat “require” tuted could a stable environment be- “necessary” when re utory language of employed cause with the United he step of the test. citing second Sergeant Air as a with States Force Staff 37, ¶16, Kelly 640 Kelly, v. ND ample earnings and a house. omitted). (citations Court Our N.W.2d 38 an evi- granted The trial court has said: and, 5, 2004, August dentiary hearing modify custody, to In a motion judgment granting an Woods’ amended analysis child re- interests of the best change a' was en- motion for of orig- required not in an quires steps two tered on the trial сourt’s memoran- based First, best inal decision. July 2004. The dum and order dated must be of the child factors been a interests trial found there has court gauged against backdrop desirability of the sta- ment and the of main- bility taining continuity. of the child’s with the parent, stability custodial because that permanence,-as unit, e. family The primary concern in change of cus- existing or proposed custodial tody Second, proceeding. after balanc- home. ing the child’s best interests and stabili- f. moral parents. The fitness of the ty with the custodial parent, g. physical The mental and health of court must conclude that a parents. quo required. pre- status A child is home, school, h. community The sumed off to better with the custodial the child. parent, and clоse calls should be re- i. preference The reasonable continuing solved in favor A custody. child, if the court deems the should be made when the intelligence, be of sufficient under- reasons transferring custody sub- standing, experience express stantially outweigh the child’s preference. parent.
with the custodial j. Evidence of domestic violence. Myers Myers, awarding custody rights or granting (citations emphasis N.W.2d 264 omit visitation, the court shall consider ted). evidence of domestic violence.... [¶ 29] The best interests the child k. The interaction and interrelation- set are forth N.D.C.C. 14-09- or ship, potential for interaction 06.2(1): interrelationship, of the child 1. For the purpose custody, the best any in, person who resides interests and welfare the child is present, frequents or the household determined the court’s consider- parent may and who significant- ation and evaluation of all factors ly affect the best interests. affecting the best interests and wel- per- The court shall consider that fare the child. in- These factors history of inflicting, son’s or tenden- following all of appli- clude inflict, cy physical harm, bodily cable: assault, injury, physi- the fear of love, affection, a. The and other emo- harm, assault, cal bodily injury, or existing tional ties between the persons. on other ents and child. l. making allegations The false b. capacity and disposition of the faith,, by in good made
parents give love, the child affec- against other, of harm to a child tion, guidancfe and to continue as defined in section 50-25.1-02. the education of the child. m. Any other factors considered c. disposition court to particular be relevant to a food,
provide the child clothing, child custody dispute. care, medical or other remedial care case, In the instant the trial conclud- *9 recognized permitted under the a, b, d, e, h, that ed factors favor m of laws this state in lieu of medical Ryan. Thus, neither Woods nor trial the care, and other material needs. d, court concluded factor which the is d. length The of time the has “length child of time the child has lived a
lived a satisfactory stable satisfactory environ- stable environment the relationship parent-child and environment. continuity” and maintaining of desirability a trial has аn e, “permanence, the as the court erroneous which is believe factor unit, existing proposed law to family properly or of' the and failed view neither custo- home” favored factors d and e. custodial consider the noncustodial Ryan, nor dial The court concluded three trial. father, Stoppler Stoppler, v. Woods. i, factors, m, applicable j, and were not to 142, our Court 638 N.W.2d 2001 ND c, The found factors this case. trial court “[essentially, factor d addresses stated: f, g “[t]he and favored Factor c is Woods. environment, including a stability of past parents provide to disposition setting, place physical or consideration of food, care, clothing, medical prior as well as consideration per- recognized other remedial care family lifestyle part its as that unit and of this state in lieu mitted under laws quality It also addresses setting. care, other material needs.” of medical environment, desirability past and the that to compared The trial court found: ‘When ¶at continuity.” Id. 9. We maintaining par- on [Ryan] dependence and her her “[fjactor e, on the other have said that also ents, Factor ‘c’favors his earn- [Woods] hand, per- for prospects with future deals employment.” from his ings family as unit.” Id. manence found both in the instant case court The record indicates has footing these stat- equal ents on on parents with her since' the divorce lived ing merely: when she and her except for month “e” are a reason Factors “d” and husband, with her new Chris child lived [Ryan] and Barbara each draw is eighteen years was old Ryan. move out of the [Ryan] will testified arid, over was divorced from Woods she Ave at 1105 5th NW Rust’s residence jobs years, next three she obtained two financially her [Ryan] is feet once financially supported by was primarily only to so in 2003 move and that she did did do parents. She testified she her Additionally, [Woods] even back. in her to assist housework testimony was some though not reflect her The record does support. visitation, a lot in his did exercise gaps level, was supports she education but [Ryan] child] when [the of visitation with seven- when she was pregnant Woods him to do so. allowed years testified she worked old. She teen recognized that under fac has Our Court Dairy Queen at a before her a time d, very aspect important tor divorce. “closest, with the relationship the child’s with a confronted Hob- siblings nurturing parent,” and others. trial court finds she choice. The son’s Roen, v. N.W.2d Roen See disposition to not have the does (N.D.1989); Kjelland, v. Kjelland food, medical care clothing, her child with 100; 609 N.W.2d Swanston needs, because she other material (N.D. or Swanston, 506, 509 502 N.W.2d Yet, employed, if unemployed. she 1993). appears equate The trial day- place need her child would parent who cares relationship dur- grandparents the child’s care or with daily with the child on basis for the conceivably hours. She then ing work who visita dispo- necessary be found to lack the could Factor d relatеs to tion love, guidance, give her child sition relationship and environ custodial past work devotion proposed affection because ment, e and factor looks *10 518 inability [Ryan] to years parents.” be her child. The for live off her ain “Catch-22” situation placed
mother is The trial court seems to make a value staying for penalized is at judgment because she Ryan about the fact that is in a she is unable to home in that position where she does not need to work advantages penal- child material and also support her child. The trial court com- working outside the home in that ized analyze fails to pletely Ryan’s whether un- to her she lacks devotion child. Gender- employment adversely affects her child’s are principles neutral violated when a food, clothing, basic needs for or medical places weight court too much economic care, subjective but rather passes judg- Little, Morgan factors. See Sandra Ryan’s parents ment on the fact that allow Custody Child & Visitation Law and her “to live off’ them while she cares for (2004). § Practice Under our 10.09[5][d] Ryan, her through arrange- Act, Uniform Juvenile Court ment parents, provides with her the neces- poverty not sufficient to establish a child is sities for her child. The record indicates proper parental is without care. See Ryan plans to move out of her 27-20-02(8)(a). N.D.C.C. The American if employment ents’ home she can find Principles Law Institute’s the Law financially will make move feasible. Family Analysis Rec- Dissolution: opinion am of the the trial court has an (2000) 2.12, p. pro- ommendations view of erroneous the law and that there is consideration, issuing a custody hibits no evidence in the to support record its order, circumstances, financial parents’ conclusion that steady the mother’s lack of except very limited circumstances. employment necessitates a penalized parent is Ryan as because she fed, clothed, aof well and eared parents who support has can afford to Leidholm, for child. See Blotske v. stay so she can home with her child. (N.D.1992) N.W.2d (holding have made that is an changing “[t]here ‘aversion’ to Otherwise, choice. would forced to custody of a happy child who publiс either seek assistance or seek mini- living with one substantial employment, wage place mum her child in time”). possibly the care of others and incur sub-
stantial debt. Factor f is moral fitness of “[t]he parents.” The trial court found case, present ab- lifestyle stable “[Woods’] shines under solutely Ryan’s personal no evidence that Factor ‘f compared [Ryan’s] very poverty causing may cause harm to hectic 2003 which saw her arrested a num the child or affects of their night, ber times—even late at her secret relationship. indicates the marriage and move out of her parents’ adequate toys, books, child has clothing, food, home bedroom, separate spouse from her bicycle his own and a and move back hоme less than a training wheels. His month medical needs are later.” The trial again met. The record present indicates fails to ana daily lyze whether changes take care of her these to teach circum mother, him. Ryan’s impact stance have an grand- the child’s adverse on the during day. works does welfare. A court pre should not housework for her. These are the sume harm on a activi- based new marriage and “stay-at-home living ties mom.” arrangement that did not be last “Sadly, [Ryan] court states: and her moth- cause of financial stress. Because the trial appear er to be content for over three Ryan’s court discusses remarriage under
519
a pack
ciga-
a friend handed her
is unclear
fied
parents,
it
fitnеss”
“moral
type
is for
the factor
rettes in which there was some
just what its basis
“enlight
more
to Woods. The
not hers
drug paraphernalia,
favorable
which was
presumption
prohibit
view” is
at
possession.
charged
ened
was
She
but
relationships
on
of harm based
sexual
Lastly,
1:53 a.m. on that occasion.
to allow consideration
parent and
mischief,
criminal
charged
but
specific
showing
harm
when there is
evi-
charge
was dismissed once was
Institute,
American
to the child. See
Law
only one individual was involved.
dent
Family
Law
Principles
Dissolu
charge
That
occurred at 1:15 a.m. on Sat-
Analysis
and Recommendations
tion:
times,
urday,
all these
May
2003. At
(2004);
2.12, Comments, pp.
§
For
283-84
parents
son was
and not
with her
(N.D.
38, 40
eng
Foreng,
v.
509 N.W.2d
Ryan
There is no evidence
uses
present.
1993)
(upholding
award to
for
drugs. She has received fines
these
was not
extramarital
whose
jail time.
offenses and has not received
children);
detrimental
to the
shown
no
ever
There is
evidence she has
Nefzger Nefzger,
see also
1999
jail overnight
arrested.-
testi-
sug
(rejecting
583
595 N.W.2d
evening socially
goes
fied she
out
relationships are
gestion that extramarital
approximately three times a month
an
of lack of moral
irrefutable indication
take care
when she does
fitness).
remarriage of a
ordi
her child.
of custo
narily
not warrant a
does
oc
under
dy,
remarriage
frequent
analyzing
is
When
conduct
because
“[cjonsideration of it as
currence and the
“moral fitness”:
grounds modification introduces consid
for
rеcommend that a court
Commentators
instability
arrange
into custodial
erable
impact
not find a direct adverse
should
Institute,
See American Law
ments.”
of the evidence
preponderance
unless
Principles
Family
the Law
Dissolu
presently
that
conduct is
parental
shows
Analysis
tion:
and Recommendations
presently affect-
affecting,
probably
(2004).
2.15,
f, p.
In the
Comment
338
ing,
about to affect
or
probably
case,
is no record evidence
instant
child,
actually
that
the effect
to the emotion
any damage
that there was
help
harmful.
a standard would
Such
child be
physical well-being
al
based on the
ensure a
decision
with her
he and his mother lived
cause
than a sub-
rather
child’s best interest
apart
for one month in an
nеw husband
moral values.
jective
parental
reaction
also no
There is
evidence
ment.
Ryan’s
has an
affect
remarriage
adverse
Little,
Custody
Morgan
Child
Sandra
relationship.
parent-child
on
10.12[2][b](2004).
“The
and Visitation
bar
standard would
courts
recommended
f,
factor
“moral fitness”
35] Under
speculative,
long-range
considering
from
trial court also cited
parents,
Su
Michigan
...” Id. The
impact,
future
they
occurred
Ryan’s
arrests
Court,
an
virtually
in interpreting
preme
in the
at
The. evidence
night.
late
“Thus,
ques-
f
identical factor
stated:
is that
had
conviction
f is not ‘whois the mora
13, 2003,
tionunder factor
on June
driving
suspension
under
y
n
adult’;
questio concerns
superior
possession of
she was convicted of
ll
parties’ relative fitness
drug paraphеrnalia
June
child,
disposition of
given
moral
their
pled guilty
pos-
to the
testified she
by individual
party
each
as demonstrated
drug
She testi-
paraphernalia.
session of
*12
Fletcher,
v.
conduct.” Fletcher
447 Mich.
adversely
shown to
affect the child’s best
(Mich.1994).
Little,
Morgan
interest.”
526 N.W.2d
Sandra
Child
Custody
Visitation
Although the
[¶
mother has social-
37]
[2][d](2004);
§ 10.11
Mayo Mayo,
see
evenings,
ized in
there
no
the
is
evidence
204, ¶25,
(af-
2000 ND
den is on No. 20040237. fact presumed nonexistence that the its existence. probable than is more of North Dakota. Supreme Court The trial court fails to 301. N.D.R.Ev. favor analyze presumption in correctly May quo the status with the maintaining require parent and fails custodial carry the parent to burden
noncustodial Here, has failed to I believe Woods
proof.
meet his burden. The trial court discusses the
[¶ 40] without ever an-
changes in circumstances adversely any of them
alyzing whether necessitating the child
affect Only adverse effects
custody. when the outweigh the “substantially parent” stability with the custodial changed. Myers, -at
should- changes in circumstances 10. Not all custody.
require change-in court failed in Because the child’s analysis properly
its balance presumption against
best interests
maintaining stability of the custodial weigh then to relationship
parent-child compelled,
whether a respectfully I would reverse dissent. custody be- judgment changing
amended record to is no evidence
cause there changes circumstances
support that the the child or that adversely
have affected they will a reasonable likelihood
there is
adversely affect MARING, MARY MUEHLEN
J.