North Dakota Supreme Court hears appeal after district court denied custody-modification prima facie showing

The North Dakota Supreme Court on its live webcast heard oral arguments in an appeal by Mackenzie Pennington challenging a district court’s October order denying her motion to modify primary residential responsibility at the prima facie/material-change stage; the court took the case under advisement.

The issue before the justices is whether the district court applied the correct prima facie standard and whether the court’s brief, three-page order contained sufficient factual findings to justify denying an evidentiary hearing. Appellant’s counsel argued the order “was 3 pages long, with 1 paragraph actually discussing the merits of the motion,” and that the limited analysis prevented meaningful appellate review. Appellant argued allegations of missed or delayed medical care, a missed vaccination deadline, school struggles, and children’s anxiety at exchanges together showed a material change in circumstances that warranted a hearing.

“It requires a bare minimum — only facts that, if proved at an evidentiary hearing, would support a change of primary residential responsibility,” attorney Christopher Rausch said, describing the prima facie standard. Rausch told the court the parties originally agreed to equal residential responsibility after the 2020 divorce, and that the district court in 2022 had relied on parenting-investigator findings to award primary residential responsibility to the appellee, Casey Weber. Rausch said the new affidavits and incidents since 2022 — including a child who later required a tonsillectomy after appearing with swollen tonsils in appellant’s care, a vaccination issue when the younger child entered kindergarten, and school problems for the older child — cumulatively show an adverse effect on the children.

Opposing counsel, Patty Jensen, representing Casey Weber, told the court the facts alleged in the motion and affidavits were not new and had been presented or available at the time of the earlier proceedings. “Casey is a 38-year-old farmer. He lives in rural New Rockford,” Jensen said, arguing the parents had agreed in the earlier judgment to a week-on/week-off schedule with parenting time conducted in the New Rockford area and that the record showed waivers and disclosures regarding the judge assigned to the trial. Jensen characterized many affidavits as “dissatisfied-parent” statements that do not, by themselves, establish an adverse material change requiring modification and said the district court’s cumulative finding was appropriate.

Both sides disputed how the district court applied the material-change threshold. Appellant urged that continued or escalating problems following the 2022 order — even if individual incidents appear limited — can still constitute a material change. Appellee emphasized that many complaints existed before the prior order, that grandparents’ participation and other logistical arrangements were longstanding, and that the affidavits lacked the expert or corroborating evidence needed to show harm that would compel a custody change.

Counsel and the justices discussed precedent the parties cited, including McKay v. McKay and other North Dakota opinions the counsel referenced as framing what constitutes sufficient harm or decline in a child’s condition to support modification. The justices questioned counsel on what specific long-term harm was alleged and whether parental interventions following incidents meant the alleged problems did not reach the level of harm required to change custody.

The Supreme Court did not issue a decision from the bench. At the conclusion of oral argument the court announced the matter will be taken under advisement and that a written opinion will follow.

Background and procedural history: the parties divorced in 2020 and agreed in 2021 to attempt equal residential responsibility with mediation requirements for modification motions. A 2022 district-court order awarded primary residential responsibility to Weber after a parenting-investigator report; the present motion to modify was filed in September 2024 and the district court issued the challenged order in October 2024, finding no prima facie material change and denying an evidentiary hearing. The Supreme Court heard appellate argument and will issue a written decision at a later date.