Volz v. Peterson

Summary

The Supreme Court of North Dakota reviewed the denial of LeAnn Volz's motion to modify the custody provisions of a divorce decree without an evidentiary hearing. The court held that the allegations and supporting affidavits established a prima facie case under N.D.C.C. § 14-09-06.6(4), including potential risks to the children's physical or mental health and the mature child's preference. The court reversed and remanded for an evidentiary hearing.

Holdings

1. A party seeking modification of custody establishes a prima facie case, and is entitled to an evidentiary hearing, by alleging in supporting affidavits sufficient facts that, if uncontradicted, would support modification in that party's favor.
2. Allegations indicating potential endangerment to the children's physical or mental health may constitute a significant change of circumstances sufficient to establish a prima facie case for custody modification.
3. A mature child's reasonable preference to live with one parent may constitute a significant change of circumstances when supported by persuasive reasons and related evidence.

Questions Presented

1. Whether Volz's motion and supporting affidavits established a prima facie case for modification of custody under N.D.C.C. § 14-09-06.6(4).
2. Whether the trial court erred by denying Volz's motion without conducting an evidentiary hearing.
3. Whether a mature child's preference to live with one parent, when supported by persuasive reasons, may constitute a significant or material change in circumstances supporting a custody-modification hearing.

Disposition

reversed_and_remanded