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Law School Case Brief

Niemann v. Niemann - 2008 ND 54, 746 N.W.2d 3


A court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds either (a) on the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties, and (b) modification is necessary to serve the best interest of the child. N.D. Cent. Code § 14-09-06.6(6). The two-step test is whether there has been a material change of circumstances, and if so, whether a custody change serves the child's best interests.

A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances. If domestic violence exists under the definition in N.D. Cent. Code § 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in N.D. Cent. Code §, there may nevertheless be a change of circumstances which may justify a change in custody under N.D. Cent. Code § Evidence of domestic violence which does not trigger the presumption remains one of the best interest factors to be considered by the trial court.


A couple divorced and the mother was granted custody of their son and daughter in 1998. Both remarried. In 2005, the father brought a motion for a change of custody for their son on grounds of material change of circumstance, citing a 2004 agreement by which the daughter went to live with the father, and domestic violence in the mother's home. The mother admitted to an incident in 2005 in which she left her home with the children one night after conflict with her husband which involved yelling and swearing; she sought to avoid further conflict. The daughter alleged that her stepfather pushed her mother during the conflict. The trial court denied the motion and motion for reconsideration. On appeal, the father alleged that the trial court abused its discretion by giving both parties only 2 hours to present their cases, that he established a material change of circumstances to support the change of custody, and that the trial court had found in his favor on the issue of best interests. 


Was the trial court’s judgment on the motion proper?




The Supreme Court of North Dakota reversed the trial court's judgment and remanded the case for further proceedings. The court found that the trial court had not erred in limiting the time allowed to the parties to present their cases. The court found that there had been a material change in circumstances; the incident in May 2005 comported with the definition of domestic violence. Regarding the 2005 incident, the daughter's fear of imminent physical harm was evident in her testimony and in her refusal to have contact with her stepfather, and the stepfather's friend removed the parties' son from home during that conflict. Insofar as the district court believed there must be serious bodily injury or a pattern of domestic violence to justify a change in custody, the court concluded that the district court made a mistake of law by applying the standard necessary to invoke the domestic violence presumption to determine whether a change in circumstances justifying a change in custody occurred. Additionally, the parties' split-custody arrangement regarding their daughter also appeared to be a material change in circumstances. There were not sufficient findings of fact in the record to show that the trial court found for the father on the best interest analysis, prompting remand for further proceedings.

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