## Facts

- Jessica Simons was born in July 1983 to Bruce Simons and Joelle Simons (later Joelle Gisvold).
- In May 1984, Bruce and Joelle divorced; Bruce received custody and Joelle received liberal visitation.
- Bruce married Debra in 1986; Jessica lived with Bruce and Debra in Fargo, North Dakota, and Debra served as Jessica’s primary day-to-day caregiver.
- Joelle remarried and lived with her husband in Galesburg while maintaining a loving relationship with Jessica through visitation.
- In 1993, Bruce died of cancer without any written custody directive for Jessica.
- Debra sought custody as Jessica’s “psychological parent,” and Joelle sought custody as the natural mother, asserting Bruce’s death was a material change in circumstances.
- A guardian ad litem recommended Jessica remain with Debra; the trial court found both Debra and Joelle morally fit and able to meet Jessica’s needs.

## Issues

1. Whether, when both the natural parent and a psychological parent are fit, custody may be awarded to the psychological parent based on a best-interests determination without a preference for the natural parent.
2. Whether a fit natural parent’s custodial claim may be denied absent proof that placement with the natural parent would cause the child serious harm or detriment.

## Decision

- The Supreme Court of North Dakota affirmed the award of custody to Joelle, the natural mother.
- The court held that a fit natural parent’s right to custody is paramount over a non-parent’s claim, including a psychological parent’s claim.
- The court concluded the record did not establish that placement with Joelle would cause Jessica serious harm or detriment.
- The guardian ad litem’s recommendation favoring Debra was treated as relevant but not sufficient to overcome the natural parent’s superior claim without proof of serious harm.

## Legal Principles

- In a custody dispute between a natural parent and a non-parent, the natural parent has a paramount right to custody.
- A psychological parent relationship may be considered, but it does not place the non-parent on equal footing with a fit natural parent.
- Custody may be awarded to a non-parent over a fit natural parent only if placement with the natural parent would cause the child serious harm or detriment (or comparable circumstances such as unfitness or abandonment).
- Best-interests considerations operate within, and do not eliminate, the natural parent preference in parent-versus-non-parent custody disputes.

## Conclusion

The court affirmed custody in the child’s fit natural mother, holding that a psychological parent may defeat a natural parent’s superior custodial claim only on a showing that placing the child with the natural parent would cause serious harm or detriment.


Simons (by & Through Simons) v. Gisvold, 519 N.W.2d 585 (N.D. 1994)