FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 23
Daniel Joseph Stoddard, Jr., Plaintiff and Appellant
v.
Christina Jean Singer, F/K/A
Christina Jean Stoddard F/K/A
Christina Jean Ringering, Defendant and Appellee
and
State of North Dakota, Statutory Real Party in Interest
No. 20200157
Appeal from the District Court of Mountrail County, North Central Judicial
District, the Honorable Richard L. Hagar, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Crothers, Justice.
Bonnie P. Humphrey, Minot, ND, for plaintiff and appellant; submitted on
brief.
Elizabeth J. Sundby, West Fargo, ND, for defendant and appellee; submitted
on brief.
Stoddard v. Singer
No. 20200157
Crothers, Justice.
[¶1] Daniel Stoddard appeals from a district court order and judgment
amending the parenting plan between Stoddard and Christina Singer for their
minor child, M.S.S. Stoddard presents 12 issues, asserting the district court
erred in its determination a change in primary residential responsibility was
unwarranted. Stoddard’s issues can be condensed to the four arguments we
address below. We affirm the district court’s order and judgment finding
Stoddard did not meet his burden of proof regarding primary residential
responsibility, not appointing a parenting investigator, and delaying the
emergency hearing. We reverse the district court’s order preventing Stoddard
from proceeding on a psychological parent claim related to J.B.G.
I
[¶2] Stoddard and Singer were married on April 24, 2010, in Washington
state. The parties’ minor child, M.S.S., was born in January 2010. Singer has
a child from a previous relationship, J.B.G., born in 2006. J.B.G. has no
biological or legal connection with Stoddard. The parties separated in May,
2016 while living in North Dakota. They resided in the same house until
Stoddard returned to Washington in August, 2016. The parties were divorced
on March 15, 2017. The divorce was by agreement of the parties, each selfrepresented. As part of the agreement, Singer received primary residential
responsibility for M.S.S. while Stoddard received parenting time on
alternating holidays and summer vacations.
[¶3] On May 20, 2018, Stoddard filed an expedited motion to modify and
enforce judgment. The parties reached a temporary agreement for Stoddard’s
summer parenting time. The district court denied any other immediate relief.
On June 20, 2018, a schedule and order for mediation was entered. A partial
agreement was reached during mediation regarding winter parenting time and
some property and debt issues. On December 23, 2018, Stoddard filed an
amended motion to amend and enforce judgment. On January 28, 2019, an
1
order finding prima facie case and granting an evidentiary hearing was
entered. The evidentiary hearing was held on July 18, 2019. Stoddard filed his
closing argument on August 19, 2019, and Singer filed a letter brief on
August 20, 2019.
[¶4] On September 25, 2019, before the district court made a decision on the
pending issues, Stoddard filed an emergency motion for an interim order
placing M.S.S. in his custody. When Stoddard’s telephonic requests to schedule
an emergency hearing were denied, he wrote letters to the court to request a
hearing. A hearing was scheduled on the emergency motion for January 21,
2020. During the hearing, the court interviewed J.B.G. and M.S.S. On
February 24, 2020, the court entered an order denying Stoddard’s amended
motion to modify and enforce judgment, as well as his emergency motion. The
order amending the parenting plan and the amended judgment were filed on
May 18, 2020.
II
[¶5] Stoddard argues the district court erred in finding he did not meet his
burden of proof in seeking a change of primary residential responsibility for
M.S.S. Stoddard asserts the court erred in: (1) failing to find abuse or neglect
by Singer, (2) not finding Singer’s alleged failures to provide for M.S.S.’s needs
was a reason to award him primary residential responsibility, (3) failing to find
Singer’s alcohol and marijuana use interfered with M.S.S.’s safety, (4) failing
to find a change in residential responsibility was necessary to provide for
M.S.S.’s special needs, (5) failing to find Singer willfully violated and interfered
with parenting time, (6) failing to consider Singer’s alleged lack of credibility,
and (7) failing to find a material change in circumstances existed that
warranted a modification in parenting time.
[¶6] A district court’s decision on whether to modify primary residential
responsibility is a finding of fact, which will not be reversed on appeal unless
it is clearly erroneous. Regan v. Lervold, 2014 ND 56, ¶ 15,
844 N.W.2d 576. A
finding of fact is clearly erroneous if it is induced by an erroneous view of the
2
law, there is no evidence to support it, or if the appellate court is convinced, on
the entire record, a mistake has been made. Id.
[¶7] Unless agreed to in writing or in the parenting plan, a motion for an
order to modify primary residential responsibility may not be made earlier
than two years after the entry of an order establishing primary residential
responsibility. N.D.C.C. § 14-09-06.6(1). That time limitation does not apply if
the court finds:
“a. The persistent and willful denial or interference with parenting
time; b. The child’s present environment may endanger the child’s
physical or emotional health or impair the child’s emotional
development; or c. The primary residential responsibility for the
child has changed to the other parent for longer than six months.”
N.D.C.C. § 14-09-06.6(3)(a)-(c). Under the clearly erroneous standard of
review, this Court will not “reweigh the evidence, reassess the credibility of
witnesses, or substitute [its] own judgment for a district court’s initial
decision.” Vandal v. Leno, 2014 ND 45, ¶ 6,
843 N.W.2d 313.
[¶8] Stoddard argues on several occasions the district court erred by not
making certain findings. Although on a different basis, the Minnesota
Supreme Court concluded a district court’s failure to make certain findings was
not clearly erroneous. In re Disciplinary Action against Albrecht,
779 N.W.2d
530, 538 (Minn. 2010) (explaining that in deference to a referee’s findings and
because findings on mitigating factors require an assessment of witness
credibility, the referee’s decision not to find additional mitigating factors was
not clearly erroneous).
A
[¶9] Stoddard argues Singer deprived and neglected M.S.S. to a point below
minimum community standards, constituting domestic violence against M.S.S.
Domestic violence is defined as “physical harm, bodily injury, sexual activity
compelled by physical force, assault, or the infliction of fear of imminent
physical harm, bodily injury, sexual activity compelled by physical force, or
assault, not committed in self-defense, on the complaining family or household
3
members.” N.D.C.C. § 14-07.1-01. Stoddard asserts Singer’s use of a baby gate
at night, M.S.S.’s alleged exposure to unsafe and unsanitary conditions,
including feces in a bathroom, and Singer’s lack of attention to M.S.S.’s dental
and medical needs support this contention. Stoddard asserts he addressed
M.S.S.’s continuing medical problems, which should have contributed to a
finding M.S.S. was deprived and neglected while in Singer’s care.
[¶10] Despite Stoddard’s assertion, the court received evidence showing M.S.S.
did not have access to the bathroom that was allegedly covered in feces.
Additionally, Stoddard filed several reports with social services regarding
alleged unsafe conditions and alleged lack of medical care for M.S.S. Each
investigation was terminated in progress with no findings or basis for abuse or
neglect allegations. Testimony also was presented showing Easter Seals
approved of Singer’s use of a baby gate at night for M.S.S. Testimony also
showed Singer was unable to promptly take care of M.S.S.’s dental problems
because she was referred to a different dentist due to M.S.S.’s special needs.
[¶11] The district court was presented with conflicting evidence about Singer’s
care for M.S.S. This Court will not reweigh the evidence presented. Vandal,
2014 ND 45, ¶ 6. The district court’s lack of a finding of domestic violence was
not clearly erroneous and we are not left with a definite and firm conviction a
mistake was made.
B
[¶12] Stoddard argues the district court erred by not finding Singer’s alleged
failures to provide for M.S.S.’s safety, structure, educational needs, medical
and dental problems were reasons to award him primary residential
responsibility. Stoddard argues Singer continually failed to provide M.S.S.
with a safe environment. He asserts Singer’s alcohol and marijuana use were
ignored by the court, including that illegal substances should not be used
around a special needs child.
[¶13] Stoddard filed several complaints with social services regarding these
issues. The complaint investigations all were terminated in progress finding
4
no neglect or abuse. A school paraprofessional testified M.S.S. was welldressed at school each day, with unmatted hair and clean fingernails. A social
worker with whom Singer voluntarily engaged on a monthly basis testified she
had no concerns about M.S.S.’s safety with Singer after thoroughly inspecting
and touring Singer’s home. The district court noted the medical and school
records showed that despite M.S.S.’s heightened hygienic and medical needs
due to his sensory processing disorder, those needs were met by Singer.
Although Singer admitted to going to the bar each Wednesday to visit with a
friend, M.S.S. was left in the care of J.B.G., something social services found on
more than one occasion was not a problem. Further, despite Singer’s admitted
marijuana use, she testified she did not use around M.S.S. or J.B.G. No
evidence was offered by Stoddard to the contrary. As the court noted, Stoddard
presented no evidence of Singer’s association with illegal drug dealing and
M.S.S.’s possible access to the illegal drugs. The district court not finding
Singer failed to provide for M.S.S.’s needs was not clearly erroneous.
C
[¶14] Stoddard asserts the district court erred in failing to find Singer’s
admitted use of alcohol and illegal drugs interfere with M.S.S.’s safety and
well-being. No evidence was presented establishing that Singer used drugs in
the presence of M.S.S., that M.S.S. had access to marijuana due to Singer’s use,
or that drug use adversely affected her care for M.S.S. The court not finding
Singer’s alcohol and marijuana use interfered with the safety of M.S.S. was not
clearly erroneous.
D
[¶15] Stoddard contends awarding primary residential responsibility and
decision-making to him is necessary to provide for M.S.S.’s special needs.
Stoddard asserts Singer’s lack of priority for M.S.S.’s care was proven by her
refusal to communicate, to provide parenting time, and to take M.S.S. to the
dentist or a medical care provider. Stoddard testified he believed the delay in
seeking dental care for M.S.S. was due to Singer prioritizing her own dental
5
care. Singer testified the reason M.S.S.’s dental care was delayed is because
she needed to locate a dentist who would treat a child with M.S.S.’s needs.
[¶16] Stoddard also claimed Singer interfered with his parenting rights by
scheduling an appointment with a geneticist in Fargo rather than continuing
care with M.S.S.’s geneticist in Washington. Stoddard alleges Singer failed to
communicate with him when she did not give him the name of the geneticist
in Fargo. The district court found Singer met M.S.S.’s medical needs since his
birth, despite disagreements between Stoddard and Singer as to how M.S.S.’s
needs should be met. The court made findings based on disputed evidence,
which was not error. Vandal, 2014 ND 45, ¶ 6. The court’s lack of further
findings that Singer failed to address M.S.S.’s special needs was not clearly
erroneous.
E
[¶17] Stoddard asserts the district court erred when it did not find Singer
interfered with his parenting time. Stoddard claims Singer intentionally and
willfully interfered with his parenting time by reducing electronic contact with
M.S.S. to four days a week instead of seven. He further claims only allowing
alternate winter breaks impedes and directly interferes with M.S.S.’s
relationship with Stoddard. Stoddard contends the court heard testimony
showing each of his parenting time requests were met with interference by
Singer.
[¶18] Each parent is allowed reasonable access to their children by written,
telephonic, and electronic means. N.D.C.C. § 14-09-32(1)(c). Stoddard and
Singer’s stipulated parenting plan reflects this provision of law. Stoddard
presented no evidence establishing that access to M.S.S. via video
communication four days a week rather than seven was an intentional
interference with his parenting time. Singer asserts the change was made
because daily contact proved to be too much for M.S.S., who is mostly nonverbal. While Stoddard asserts he only was allowed alternate winter breaks
for parenting time, the parenting plan provided for M.S.S. to be with Stoddard
each summer. Stoddard admits he received that parenting time during the
6
summers of 2017, 2018 and 2019. While miscommunications occurred about
when M.S.S. needed to be back with Singer at the end of summer 2018,
Stoddard had M.S.S. until the day before school began. Overall, the district
court had disputed evidence before it. Deference is given to the court because
making such a finding required an assessment of witness credibility. See
Albrecht, 779 N.W.2d 530, 538 (Minn. 2010). The court’s failure to find willful
or intentional interference by Singer with Stoddard’s parenting time was not
clearly erroneous.
F
[¶19] Stoddard claims the district court erred when it did not consider Singer’s
alleged lack of credibility and inconsistent testimony in making its
determination that a change in primary residential responsibility was
unwarranted. He argues the court should have reassessed Singer’s credibility
after the January 21, 2020 hearing where she allegedly admitted she was not
candid under oath about her alcohol and drug use.
[¶20] At the January hearing, Singer was confronted with Facebook posts
regarding alcohol use but asserted she quit drinking after a September 2019
hospital admission for mental health problems. Singer also admitted to
occasional marijuana use. Stoddard points out no actual instance in which
Singer’s testimony was inconsistent. This Court has said:
“‘In a bench trial, the [district] court is the “determiner of
credibility issues and we do not second-guess the [district] court on
its credibility determinations.” We do not reweigh evidence or
reassess credibility, nor do we reexamine findings of fact made
upon conflicting testimony. We give due regard to the [district]
court’s opportunity to assess the credibility of the witnesses, and
the court’s choice between two permissible views of the evidence is
not clearly erroneous.’”
Roberson v. Roberson, 2004 ND 203, ¶ 10,
688 N.W.2d 380 (quoting McDowell
v. McDowell,
2003 ND 174, ¶ 16,
670 N.W.2d 876). The district court’s
determination that Singer’s testimony was credible was not clearly erroneous.
7
G
[¶21] Stoddard argues the district court erred by not finding a material change
of circumstances exists meriting a modification of parenting time. Essentially,
Stoddard argues that while the two-year period for modification was not met
when the initial motion was filed, the period would have been met in March
2019.
[¶22] Under N.D.C.C. § 14-09-06.6, the standard the district court must apply
to decide whether to modify parenting time depends on when the motion was
made and not when the court ultimately decides the motion. Morton Cty. Soc.
Serv. Bd. v. Cramer, 2010 ND 58, ¶ 17,
780 N.W.2d 688. According to that
section:
“The court may not modify the primary residential responsibility
within the two-year period following the date of entry of an order
establishing primary residential responsibility unless the court
finds the modification is necessary to serve the best interests of the
child and:
a. The persistent and willful denial or interference with parenting
time;
b. The child’s present environment may endanger the child’s
physical or emotional health or impair the child’s emotional
development; or
c. The residential responsibility for the child has changed to the
other parent for longer than six months.”
N.D.C.C. § 14-09-06.6(5) (emphasis added). If a modification is sought after the
two-year period, a court may modify primary residential responsibility on a
showing of a material change in circumstances of the child or party and that a
modification is in the best interests of the child. N.D.C.C. § 14-09-06.6(6).
Stoddard was not eligible for the less stringent standard under N.D.C.C. § 14-
09-06.6(6) because he filed a motion for modification within two years of entry
of the original order. Upon application of the less stringent standard, Stoddard
asserts the best interest factors weigh in favor of awarding him primary
residential responsibility. Stoddard makes a separate argument the district
court failed to address concerns about property and debt enforcement, claiming
8
financial stability is crucial to a best interests determination when raising a
special needs child.
[¶23] Under N.D.C.C. § 14-09-06.6(5) the movant bears the burden of showing
a change in primary residential responsibility is in the child’s best interests
and the persistent and willful denial of parenting time, the child’s present
environment endangers the child’s physical or emotional health or impairs the
child’s emotional development, or the primary residential responsibility for the
child has changed to the other parent for longer than six months. (Emphasis
added.) As noted above, the district court found no persistent and willful denial
of parenting time, and no endangerment to M.S.S.’s physical or emotional
health or development. The court’s findings regarding denial of parenting time
and harm to the child were not clearly erroneous and therefore we do not reach
Stoddard’s argument regarding the best interest factors.
III
[¶24] Stoddard argues the district court erred by not considering his
relationship with J.B.G., and by not permitting him to seek parenting time
with J.B.G. as a psychological parent.
[¶25] “It is well-settled that parents have a paramount and constitutional
right to the custody and companionship of their children superior to that of any
other person.” Bredeson v. Mackey, 2014 ND 25, ¶ 10,
842 N.W.2d 860 (quoting
Hamers v. Guttormson,
2000 ND 93, ¶ 5,
610 N.W.2d 758). A parent’s right to
custody, however, “is not absolute and exceptional circumstances may exist
that require, for the best interest of the child, that a non-parent receive
visitation or custody.” Bredeson, at ¶ 10. A visitation award to a non-parent
may be made when the non-parent is a “psychological parent or when the non-parent has an established relationship with the child.” Id. at ¶ 11 (internal
citation omitted). This Court has defined a psychological parent as “A person
who provides a child’s daily care and who, thereby, develops a close bond and
personal relationship with the child [and] . . . to whom the child turns for love,
guidance, and security.” Id.
9
[¶26] When Stoddard’s parenting time with J.B.G. was brought up during the
first evidentiary hearing, the following exchange occurred:
“[MS. HUMPHREY]: Now you also requested visitation with JBG,
[how] come?
[STODDARD]: I raised JBG for seven years. I was the only father
figure she knew of.
THE COURT: Okay, stop right there. You’re wasting my time. Is
JBG his child?
MS. HUMPHREY: No.
THE COURT: Does JBG have a father figure somewhere?
MS. HUMPHREY: Him.
THE COURT: No, I meant an actual father. A biological father.
Does JBG have a biological father? He has not passed away? Is it
him?
THE WITNESS: She has a biological father she has never met,
Your Honor.
THE COURT: That’s fine. Has his rights been terminated as a
father? Whoever that person is whom she has never met?
MS. SUNDBY: No.
THE COURT: Okay. Sorry, you have no claim here. Continue.”
Stoddard claimed he spent significant time with J.B.G. before the divorce and
acted in a parental role toward her both before and after the divorce. He
asserted the district court should have awarded him parenting time with
J.B.G. because he is a “psychological parent.”
[¶27] Although North Dakota recognizes the psychological parent claim, we
have not described the threshold necessary to proceed with a claim. Several of
10
our sister states have done so, explaining that the moving party must present
a prima facie case before being allowed to proceed. See In re Custody of
H.S.H.-K., 533 N.W.2d 419, 421 (Wis. 1995) (explaining a circuit court may
only determine whether visitation is in a child’s best interests if the petitioner
first proves all required elements of a parent-like relationship); A.F. v. D.L.P.,
771 A.2d 692, 698-701 (N.J. Super. Ct. App. Div. 2001) (applying the four
prongs of the Wisconsin test).
[¶28] The prima facie case threshold is consistent with North Dakota’s
requirement for a parent’s motion for a change in primary residential
responsibility. See N.D.C.C. § 14-09-06.6(4) (“The court shall set a date for an
evidentiary hearing only if a prima facie case is established.”); Dietz v. Dietz,
2007 ND 84, ¶ 19,
733 N.W.2d 225 (“If a prima facie case is not established as
a preliminary matter under N.D.C.C. § 14-09-06.6(4), a hearing on an interim
order pending the proceeding for the motion to change custody is not
necessary.”). Like a parent seeking to change primary residential
responsibility, we conclude a non-parent seeking parenting time in addition to
a biological or legal parent-child relationship also should be required to meet
the prima facie threshold before being able to proceed with an evidentiary
proceeding.
[¶29] Stoddard moved for “visitation” with J.B.G. In addition to trying to
present evidence as indicated above, Stoddard testified the parties had
“agreements” regarding his involvement in J.B.G.’s life after the divorce. Prior
to the hearing, the district court determined Stoddard established a prima
facie case regarding decision-making and residential responsibility for M.S.S.
The court made no similar finding regarding Stoddard’s visitation with J.B.G.
Nothing suggests the district court intended to grant an evidentiary hearing
on the visitation requested for J.B.G. Based on this record, the district court
erred either in not determining whether Stoddard presented a prima facie case
regarding J.B.G. or, if intending its order to find a prima facie case for J.B.G,
by not allowing Stoddard to proceed with the visitation claim at the evidentiary
hearing. We reverse and remand for the district court to determine whether
11
Stoddard established a prima facie case warranting a hearing on his request
for time as a psychological parent.
IV
[¶30] Stoddard claims the district court erred by not appointing a parenting
investigator. “In contested proceedings dealing with parental rights and
responsibilities the court, upon the request of either party, or, upon its own
motion, may order an investigation and report concerning parenting rights and
responsibilities regarding the child.” N.D.C.C. § 14-09-06.3(1). “When a district
court may do something, it is generally a matter of discretion.” Buchholz v.
Buchholz, 1999 ND 36, ¶ 11,
590 N.W.2d 215 (emphasis in original).
[¶31] On December 2, 2018, as part of Stoddard’s amended motion, he
requested the district court appoint a parenting investigator. The court denied
that request in its February 23, 2020 order. Stoddard makes no contention the
court’s decision not to appoint a parenting investigator was an abuse of
discretion. He presented no supporting facts to show the court erred by
declining to appoint an investigator. The court’s decision not to appoint a
parenting investigator was not an abuse of discretion.
V
[¶32] Stoddard argues the district court erred by delaying, without
explanation, the hearing under N.D.R.Ct. 8.2 for his emergency motion.
Stoddard asserts the court’s repeated denials, without explanation, directly
affected the well-being, emotional, and physical condition of M.S.S. as shown
by testimony at the hearing held on January 21, 2020.
[¶33] “If a notice of motion and motion are served to obtain an interim order,
the court shall hold a hearing no later than 30 days from the date of filing the
motion.” N.D.R.Ct. 8.2. However, this Court has stated: “If a prima facie case
is not established as a preliminary matter under N.D.C.C. § 14-09-06.6(4), a
hearing on an interim order pending the proceeding for the motion to change
custody is not necessary.” Dietz, 2007 ND 84, ¶ 19.
12
[¶34] Stoddard filed his emergency motion on September 25, 2019. A hearing
on the motion was not held until January 21, 2020. The district court did find
Stoddard established a prima facie case under his original motion for
modification of primary residential responsibility. However, an evidentiary
hearing was held on the original motion and the case was being reviewed by
the court when Stoddard filed his second motion. There is nothing in the record
suggesting the court’s reasoning for delaying the hearing. There were several
affidavits and letters filed with the court between the second motion and
evidentiary hearing that could have led to the eventual establishment of a
prima facie case. Stoddard’s affidavit initially filed with the motion primarily
took issue with Singer’s hospitalization for mental health problems and alleged
Singer lied under oath about several items related to her mental health. In
contrast, Stoddard’s supplemental affidavit filed January 4, 2020, alleged
Singer denied Stoddard holiday parenting time with M.S.S. and that Singer
was binge drinking while M.S.S. was in her care. Under the facts and
circumstances of this case, including Stoddard filing a new motion and papers
before the district court decided the pending motions, Stoddard has not shown
the court erred in delaying an evidentiary hearing.
VI
[¶35] We affirm the district court’s order and judgment finding Stoddard did
not meet his burden of proof regarding primary residential responsibility, not
appointing a parenting investigator, and delaying the emergency hearing. We
reverse the district court’s order preventing Stoddard from proceeding on a
psychological parent claim related to J.B.G. and remand for proceedings
consistent with this opinion.
[¶36] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
13
