Sunday, August 21, 2005
Lagro v. Lagro, 2005 ND 151; 2005 N.D. LEXIS 187 (2005)
This case present an excellent study for the difficulties in stating a case for change in custody. With plenty of excerpts from Mom's affidavits and a dissenting opinion to provide an entirely different view, the case would make an excellent problem for classroom discussion.
The parents in this action had been divorced less than ten months, with a joint custody arrangement in place, when mom moved for sole custody based on allegations that dad had been neglecting his parental duties and that she had been acting as the primary physical custodian since the divorce. She also alleged dad’s parenting was placing the children at risk of physical and psychological harm. She did not, however, present affidavits from experts, teachers or others to support her allegations. The North Dakota Supreme Court upheld the trial court’s dismissal of her petition without an evidentiary hearing on the basis that her allegations lacked sufficient detail and competency to state a prima facie case. According to the court, affidavits must provide “specific, credible evidence.” Mom’s allegations regarding Dad’s behavior did not include the basis on which she was claiming knowledge of this behavior. Similarly, the court held that her statements regarding the number of days the children had been residing with her was insufficient to show a change primary physical care had shifted to her because “strict mathematical calculation from the affidavits of the time spent with the child does not establish a change of primary physical care.”
The majority opinion held that the trial court’s determination should be reviewed on an abuse of discretion standard. Justice Kapsner dissented, arguing that the majority had ignored the plain words of the custody statute by changing what previous cases had held to be a question of law into a matter of discretion. Justice Kapsner suggests that, if the court is concerned that parties can too easily meet the statutory standard by providing unsupported allegations, the attorney’s fees provisions would provide amble deterrents.
Text of opinion on the web at http://www.ndcourts.com/_court/opinions/20050094.htm