ND Supreme Court hears appeal in custody dispute over alleged parental alienation

The North Dakota Supreme Court heard argument in file No. 20240196, Kyle Zittleman v. Shannellee Biblar, over whether a district court erred by denying a March 2023 motion to change residential responsibility.

Appellant counsel Theresa Kellington told the court the district court ignored evidence of a material change in the child’s circumstances and of parental alienation. "I'm glad you're mine," Kellington said counsel had introduced as a text message admitted into evidence that she attributed to the appellee and his communications with the child. Kellington said the child’s behavior and mental-health indicators — nail chewing, frequent bathroom visits, and increasing hostility toward the mother and maternal grandparents — had worsened since the original custody proceedings and that the lower court failed to weigh those signs in finding no material change.

Kristen Binder, counsel for the appellee Kyle Zittleman, urged the justices to affirm the district court. She said the lower court reasonably summarized the appellant’s claims into three main points and properly assessed credibility, including testimony that key expert opinion relied heavily on information provided by the appellant and that two witnesses undermined the appellant’s credibility. Binder noted the district court found limited examples of inappropriate conduct but concluded those examples did not rise to parental alienation; the lower court nonetheless ordered reunification therapy and minor parenting-plan modifications.

Counsel and the justices discussed the case history the attorneys placed before the court: a trial held Aug. 22, 2016, a judgment entered thereafter, additional motions and hearings through 2020, a third amended judgment entered in May 2021, a March 2023 modification motion, an evidentiary hearing in March 2024, and a district-court order issued in May 2024. The parties disputed whether the mother’s move to North Dakota, alleged violations of visitation and telephone provisions, and the child’s reported decline met the legal standard for a material change of circumstances.

Theresa Kellington emphasized the written orders she relied on: a 2016 visitation order urging "frequent and liberal" contact, a 2018 provision requiring telephone contact "at a minimum" on Tuesdays and Fridays at 7 p.m. Central, and a May 2021 order allowing approved family or friends to assist in exchanges and directing that the child have phone access to contact parents. She argued the appellee repeatedly restricted contact beyond the schedule and interfered with counseling and school communications, which she said supported modification.

Kristen Binder countered that many of the appellant’s allegations were either not violations of the judgment on their face or were explained in the record, and that the district court properly declined to reweigh witness credibility. She also pointed to testimony that the appellant had asked two witnesses not to testify absent subpoenas and to other prior testimony the court used to evaluate credibility.

At the conclusion of oral argument, the court took the case under advisement and did not announce a decision. The justices stated the matter would be considered and an opinion issued in due course; the court then adjourned the session.