Green v. Swiers

Citations: 2018 ND 258; 920 N.W.2d 471Docket: 20180114

Court: North Dakota Supreme Court; December 6, 2018; North Dakota; State Supreme Court

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Brittany Lynn Green appealed a district court order that denied her motion to relocate with the minor child, ILS, and granted Scott James Swiers’ motion to modify parenting time. The district court, presided over by Judge Donald Hager, had previously established Green as the primary residential parent following a stipulated agreement between the parties in October 2016. After Swiers sought to modify this arrangement in May 2017, Green requested to move to Seattle with her fiancé.

The Supreme Court of North Dakota affirmed the lower court's decision, ruling that the district court did not err in its analysis of the Stout-Hawkinson factors nor in its determination of a material change in circumstances justifying the modification of parenting time. The court emphasized that findings regarding motions to relocate are factual and can only be overturned if clearly erroneous, meaning there must be a significant mistake in law or a lack of evidentiary support for the decision. The court noted that it would not reweigh evidence or reassess witness credibility, affirming the trial court’s discretion in custody matters.

Section 14-09-07(1), N.D.C.C. stipulates that a parent with primary residential responsibility cannot relocate a child to another state without court approval or the other parent's consent, provided the other parent has visitation rights. The relocating parent must demonstrate that the move serves the child's best interests by a preponderance of the evidence. The district court assesses this by applying four factors from Stout v. Stout and modified in Hawkinson v. Hawkinson: 

1. The potential benefits of the move for the custodial parent and child’s quality of life.
2. The custodial parent's motives for relocating, particularly if they are intended to obstruct the noncustodial parent's visitation.
3. The noncustodial parent's motives for opposing the move.
4. The possible negative effects on the noncustodial parent's relationship with the child, including visitation opportunities and the likelihood of compliance with visitation arrangements.

No single factor is paramount, and their relevance may vary by case. Green argues that the district court misanalyzed the first, second, and fourth factors. For the first factor, the court considers the custodial parent's job prospects, health benefits, potential support networks, the child's preferences, and educational opportunities. Green indicated she would not seek employment post-relocation, instead relying on her fiancé for support, raising doubts about the economic advantages of the move. The court also questioned Green's claims of improved social and educational conditions in Seattle and highlighted the existing family support network in the Red River Valley, which would be lost if she relocated.

Green's situation is compared to Booen v. Appel, where the court allowed a mother to relocate with her minor child to join her fiancé, emphasizing the benefits of family unity and the fiancé's business opportunities. In contrast, Green has no children with her fiancé, and the district court expressed doubts about the fiancé's financial stability. The court found sufficient evidence supporting its decision regarding the potential advantages of the move for Green and her child, concluding there was no misapplication of law or clear error in judgment.

Regarding Green's motives for relocating, the district court noted her desire to distance her child from Swiers, the noncustodial parent, which is generally impermissible. Testimony revealed Green's negative feelings towards Swiers and her wish for her fiancé to take his place. The court found credible evidence supporting its conclusions on this matter and maintained that it did not misapply the law or err in its judgment.

The potential negative impact on the child’s relationship with the noncustodial parent was also assessed. The court indicated that relocation should be denied under exceptional circumstances, particularly if the custodial parent would not support the noncustodial parent's relationship with the child. The district court concluded that Green would likely inhibit Swiers’ relationship with the child and might not comply with a parenting schedule. This assessment was based on credible evidence presented during the proceedings.

Finally, Green challenged the district court's finding of a material change in circumstances justifying a modification of parenting time, citing N.D.C.C. 14-05-22(2). The court has the authority to modify parenting time if a material change has occurred and if such modification serves the child's best interests. The case law establishes that the burden is on the movant to demonstrate these criteria.

A material change in circumstances sufficient to modify a parenting time order differs from that required to alter primary residential responsibility. A material change for parenting time involves significant new facts that were unknown at the time of the initial order. A district court's decision to modify parenting time constitutes a factual finding, which may only be overturned if deemed clearly erroneous. A finding is considered clearly erroneous if it is based on a misinterpretation of the law, lacks evidentiary support, or if there is a firm conviction that a mistake has been made. The court determined both parties exhibited immaturity and lacked credibility, but noted that Green had obstructed Swiers' visitation and attempted to undermine his relationship with the child. Evidence presented indicated that Green tried to alienate the child from Swiers by introducing her fiancé as a replacement and limiting parenting time. Although Green contested this evidence, the appellate court does not reassess custody cases or substitute its judgment. The district court's conclusion of a material change justifying a modification of parenting time is supported by the evidence and is not clearly erroneous. Consequently, the court affirmed the order denying Green's motion to relocate with the child and the modification of the parenting time schedule.