Family Law Keyed to Weisbergback
Brief Fact Summary. At a custody hearing, both parents (Coreen and Kurt) presented evidence of domestic violence. The court awarded custody of the marital child to Coreen.
Synopsis of Rule of Law. North Dakota law creates a rebuttable presumption against awarding custody to a parent who has perpetrated domestic violence when the court found credible evidence that domestic violence has occurred if it is a pattern of domestic violence or involves serious bodily injury.
Facts. Coreen and Kurt married in 1992, with a daughter, Morgan, being born one month later. The parties separated in 1994, with an interim order issued by the district court allowing Coreen, Morgan and Bryson, Coreen’s son from a previous marriage, to live in the marital home. At a custody hearing in 1998 both parties presented evidence of domestic violence. Coreen presented testimony of three incidents of domestic violence, while Kurt presented evidence of one incidence of Coreen committing domestic violence. The district court awarded custody of Morgan to Coreen and ordered Kurt to pay spousal and child support. Kurt appealed claiming that the custody determination is erroneous because the Court incorrectly analyzed the evidence concerning domestic violence.
Issue. Did the court err in determining that allegations of Kurt committing domestic violence created a presumption against awarding custody while allegations of Coreen committing domestic violence did not?
Held. The trial court did not err in determining that Kurt’s allegations included repeated domestic violence and serious bodily injury, while Coreen’s did not.
Trial courts must determine custody based on the best interests of the child, considering all factors under the best interest standard. North Dakota law creates a rebuttable presumption against awarding custody to a parent who has perpetrated domestic violence when the court found credible evidence that domestic violence has occurred. Under an amended statute, the presumption is triggered when there exists one incident of domestic violence that resulted in serious bodily injury or involved the use of a dangerous weapon, or a pattern of domestic violence exists within a reasonable time proximate to the proceeding. Once the presumption is triggered, it becomes the paramount factor, preventing an abusive parent from obtaining custody unless the abuse parent proves by clear and convincing evidence that the best interests of the child require the abusive parent to participate in or have custody.
The trial court must consider all statutory factors, and if evidence of domestic violence is insufficient to trigger the presumption, it remains one of the best-interest factors. In the present case the court determined that only the domestic violence of Kurt invoked the rebuttable presumption, finding evidence of domestic violence which resulted in serious bodily injury and a pattern of domestic violence within a reasonable time proximate to the proceeding.
The court is required to make specific and detailed findings regarding the effect the allegations of domestic violence have on the presumption. Specific findings are not required when the evidence of domestic violence does not rise to the level triggering the presumption.
Discussion. The court’s discussion demonstrates how domestic violence may be considered even when in does not directly relate to the best interests of the child. In this case the court found that Coreen’s one alleged incident of domestic violence was insufficient to trigger the presumption.