December 4, 2006
Case Law Development: Change in Circumstances as a Matter of Law
My students are sometimes frustrated by the large degree of deference given to trial courts in custody and visitation matters, leading to an attitude that "no case is predictible." To counter this perception, I like to share cases in which discretion is limited by the facts alone. The North Dakota Supreme Court provides one such case in which it holds that a trial court erred in determining that no change in circumstances justified modification of a visitation schedule. Mother and Father had lived in the same town when visitation was established, but Mother and the child moved to a distant town thereafter. That same month Father was diagnosed with a serious disease requiring a twelve-month-long course of weekly treatments. He received treatments on Fridays, resulting in his exhaustion. He requested that Wife be required to assist in getting the child to him for his twice-a-month visitation, as driving to her home to pick up his child became physically difficult as well as more expensive and time-consuming.
On this record, the court concluded that "the change in circumstances since the original decree is material as a matter of law."
Ibach v. Zacher, 2006 ND 244 (November 28, 2006)
Opinion on web (last visited December 4, 2006 bgf)
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