N.D. Supreme Court hears appeal over district court's award of primary residential responsibility

The North Dakota Supreme Court heard oral argument in an appeal challenging a district court's Aug. 2, 2024 orders that granted primary residential responsibility to Mr. Kinden for the parties' three children. Appellant counsel Afton Grant argued the district court erred; appellee counsel Patrick Waters defended the decision. The court took the case under advisement.

The dispute centers on whether the parties' Sept. 21, 2022 amended judgment — entered after an eight‑month parenting investigation — restarted the statute's two‑year moratorium on post‑judgment custody modifications. Afton Grant, representing appellant Sarah Nell, told the court that the lengthy investigation and the amended order were effectively a new custody proceeding and therefore should restart the two‑year clock under subsection 5 of 14‑09‑06.6, requiring an exception before modification. Grant argued the district court did not properly weigh established best‑interest factors against the status quo and failed to make required findings that material changes adversely affected the children.

Grant described the investigative record: an investigator assigned Jan. 5, 2022 produced a roughly 50‑page report after interviews with the children, 18 collateral witnesses, home observations and psychological testing. Two days before trial the parties stipulated to the Sept. 21, 2022 amended judgment, which on its face continued “equal residential responsibility.” Grant said that, despite the amended judgment's language, the substance of the order differed enough from the Dec. 15, 2020 judgment to restart the moratorium and trigger the stricter statutory standard.

Patrick Waters, counsel for appellee Mr. Kinden, told the court the correct legal standard was the less‑stringent subsection 6 because case law holds that mere changes in visitation or non‑primary residential arrangements do not restart the two‑year clock. Waters argued the district court — Judge Lofgren sitting as the fact‑finder at trial — properly considered and weighed the statutory best‑interest factors and that its findings were not clearly erroneous. Waters emphasized evidence the district court relied on, including unobjected‑to school communications documenting attendance concerns and testimony about parental conduct and the children's welfare.

Both sides disputed factual points the district court weighed. Grant pointed to mediation orders (June 1, 2023) and argued Mr. Kinden failed to follow dispute‑resolution procedures and voluntarily moved from Garrison to Bismarck, a relocation that reduced his weekday parenting time. Grant also noted that, after the move, Ms. Nell re‑enrolled the children in the Garrison schools and that she initiated mediation in December 2023. Grant argued the court failed to account for the stability the children had with Ms. Nell, and she criticized the district court's reliance on two best‑interest factors that favored Mr. Kinden without finding an adverse effect on the children's physical, mental or emotional health.

Waters responded that the record showed attendance problems and concerns about the monitoring of PK, a 12‑year‑old with type‑1 diabetes, and that Mr. Kinden had been more vigilant about those health and attendance matters. Waters pointed to documentary evidence admitted at trial, described the district court's detailed written opinion weighing multiple best‑interest factors, and urged that appellate reversal would substitute the appellate court's fact‑finding for the district court's.

The justices asked questions about controlling case law and whether the amended judgment's language of “equal residential responsibility” should control the statutory analysis. Grant cited Greener v. Greener (as discussed in briefing) to support restarting the moratorium in certain circumstances; Waters and the court's questioning referenced other precedent the parties debated as to whether equal residential responsibility creates a narrow exception. Both counsel agreed that, whichever subsection applies, the ultimate inquiry returns to the children's best interests.

Chief Justice John Jensen adjourned the argument and said the court would take the matter under advisement. The justices noted the court would reconvene the following morning at 9:30 a.m., Feb. 21, for further business.

No decision was announced at argument.