## Facts

- Heidi Niemann (now Heidi Wolf) and Lyle Niemann divorced in 1998; Heidi received custody of their son and daughter.
- Both parents later remarried.
- In 2001, Lyle sought a change of custody, but his motion was dismissed without a hearing.
- In June 2004, by agreement, the parties’ daughter moved to live with Lyle.
- In August 2005, Lyle moved to change custody of the parties’ son from Heidi to Lyle.
- Lyle supported his motion with affidavits and materials alleging the son had been exposed in Heidi’s home to domestic violence, alcohol abuse, repeated involvement of social services, arguments and vulgar language, and a lack of structure affecting school performance.
- Heidi responded with affidavits denying domestic violence and alcohol abuse, asserting the daughter fabricated claims to live with Lyle, and stating she helped the son with homework while acknowledging she had difficulty getting him to school on time.
- Before the evidentiary hearing, the parties reaffirmed their agreement that the daughter’s physical custody would remain with Lyle.
- The district court appointed a custody investigator, who interviewed both parents, their spouses, the two children, and friends and family members of both parties.
- The investigator recommended awarding custody of the son to Lyle, citing concerns about domestic violence, alcohol abuse, lack of structure, and adult arguments with inappropriate language in front of the children.
- Two events featured in the record: (1) the daughter reported to a school social worker a fight between Heidi and the stepfather involving yelling and swearing that ended with household items being broken; and (2) the stepfather allegedly came home intoxicated, yelled, and pushed Heidi, leading to a report to social services; the daughter said she was scared of the stepfather.
- At a June 2006 pretrial conference, the district court limited each party to two hours to present evidence at the custody-modification hearing; both sides objected.
- After the hearing, the district court denied Lyle’s motion, concluding no material change in circumstances justified modifying custody of the son, and later denied Lyle’s motion for reconsideration.
- Lyle appealed.

## Issues

1. Did the district court clearly err by finding no material change in circumstances sufficient to require a new best-interests determination on Lyle’s request to modify custody of the parties’ son?
2. Did the district court abuse its discretion by limiting each party to two hours of evidence in a contested custody-modification hearing, thereby preventing a full and fair presentation of the case?

## Decision

- The North Dakota Supreme Court reversed the order denying Lyle’s motion to change custody and reversed the order denying reconsideration.
- The court remanded for further proceedings consistent with its opinion.
- The court held the district court clearly erred in concluding there was no material change in circumstances, given the record (including the investigator’s recommendation and evidence of conditions in the custodial home).
- The court held the rigid two-hour-per-side limit, imposed over both parties’ objections in a case involving serious allegations and multiple witnesses, was an abuse of discretion because it did not allow a full and fair hearing on custody.

## Legal Principles

- A post-judgment custody modification in North Dakota requires a two-step showing: (1) a material change in circumstances since the prior custody order, and (2) that modification is necessary to serve the child’s best interests.
- The existence of a material change in circumstances and whether modification serves the child’s best interests are factual determinations reviewed under the clearly erroneous standard.
- A finding is clearly erroneous when it is induced by an erroneous view of the law, is not supported by the evidence, or leaves the appellate court with a firm conviction a mistake was made.
- Allegations and evidence that a child has been exposed to domestic conflict or violence, substance abuse in the home, lack of structure, or problems affecting schooling may support a finding of a material change in circumstances when they show a meaningful shift in the child’s environment since the last custody order.
- A court-appointed custody investigator’s report and testimony are evidence the court must consider; while not binding, they may be significant when based on interviews with the parents, children, and other witnesses.
- Trial courts may manage the orderly presentation of evidence, but time limits must still permit a fair opportunity to present and test evidence on best-interests factors; in a contested custody-modification hearing, an inflexible and severely restrictive limit can be an abuse of discretion.

## Conclusion

Niemann v. Niemann reverses a denial of a father’s motion to modify custody of the parties’ son because the record supported a material change in circumstances and the district court’s strict two-hour-per-side cap prevented a full and fair hearing; the Supreme Court remanded for further proceedings and a proper custody determination under the child’s best interests.


Niemann v. Niemann, 746 N.W.2d 3 (2008)