Damron v. Damron

Summary

The Supreme Court of North Dakota reversed an amended judgment transferring custody from Valerie Damron to Millard Shawn Damron. The court held that, under N.D.C.C. § 14-09-06.6(5)(b), a parent's homosexual household is not grounds for modifying custody within two years of a prior custody order absent evidence that the environment endangers or potentially endangers the children's physical or emotional health or impairs their emotional development. The court overruled Jacobson v. Jacobson to the extent it could be read to create a presumption of harm and declined to reach the constitutional claims.

Holdings

1. Under N.D.C.C. § 14-09-06.6(5)(b), a custodial parent's homosexual household is not grounds for modifying custody within two years of a prior custody order absent evidence that the environment endangers or potentially endangers the children's physical or emotional health or impairs their emotional development.
2. To the extent Jacobson v. Jacobson can be read as creating a presumption that children living in a lesbian household are harmed, it is overruled.
3. The court declined to address whether modifying custody based on sexual orientation violated the federal and state constitutions because reversal on statutory and evidentiary grounds resolved the appeal.

Questions Presented

1. Whether the trial court clearly erred in modifying custody within two years of the prior custody order without evidence that the children's present environment endangered or potentially endangered their physical or emotional health or impaired their emotional development.
2. Whether Jacobson v. Jacobson could be read to create a presumption that a parent's same-sex relationship harms children and eliminates the moving parent's burden to prove actual or potential harm.
3. Whether the custody modification based on Valerie's sexual orientation violated the federal and state constitutions.

Disposition

reversed