Background
Joshua Goetz and Cassandra Smith divorced in 2018. Smith received primary residential responsibility for their two daughters, L.G. (born 2011) and A.G. (born 2015), with Goetz receiving alternating weekend and holiday parenting time. The parties have a lengthy litigation history: a 2021 motion by Goetz to obtain primary residential responsibility led to the appointment of a parenting investigator, an evidentiary hearing in January 2022, and two prior Supreme Court remands for inadequate findings. See Goetz v. Goetz, 2023 ND 53, 988 N.W.2d 553; Goetz v. Goetz, 2023 ND 120, 993 N.W.2d 350.
In February 2024, Goetz again moved for primary residential responsibility or, alternatively, increased parenting time. The district court denied the primary-responsibility request for lack of a prima facie case but held an evidentiary hearing in October 2024 on the parenting-time motion. Over Smith’s objection under N.D.R.Ct. 8.13, the court conducted an in-chambers interview of L.G., during which L.G. expressed a preference for more time with her father. The court also referenced the 2021 parenting investigator’s report in its best-interests analysis, even though the investigator did not testify at the 2024 hearing and the parties had no advance notice the court would rely on that report.
The district court found a material change in circumstances based on Smith’s interference with Goetz’s parenting time, her inflexibility with exchange schedules, the children’s expressed desire for more time with Goetz, and ambiguity in the existing plan’s exchange times. It amended the parenting plan to give Goetz approximately ten days of parenting time per month. Smith appealed.
The Court’s Holding
The Supreme Court affirmed the district court’s finding of a material change in circumstances, holding it was not clearly erroneous. The court recognized that conflict over implementing a parenting plan—including one parent’s interference and inflexibility—can constitute a material change justifying modification of parenting time, even without a showing of adverse effect on the children. Critically, Smith herself had testified that the children wanted to spend more time with Goetz, providing competent record support for that finding independent of the challenged interview.
The court reversed the parenting-time modification, however, on two independent grounds. First, N.D.R.Ct. 8.13(a) permits an in-chambers child interview only with both parents’ consent; because Smith did not consent, the interview was impermissible as a matter of law. The court rejected Goetz’s argument that N.D.R.Ev. 614—allowing a court to call and examine witnesses—authorized the procedure, reasoning that Rule 8.13 is a specific procedure governing in-chambers proceedings in custody and parenting-time cases and controls over the general evidence rule. Second, the court held it was reversible error for the district court to rely on the 2021 parenting investigator’s report at the 2024 hearing without providing the parties advance notice and an opportunity to cross-examine the investigator at that hearing, as required by N.D.C.C. § 14-09-06.3 and established precedent.
On harmless-error analysis, the court concluded neither error was harmless. The in-chambers interview was the primary—and improperly obtained—basis for the district court’s finding that L.G. was a sufficiently mature child whose preference could receive substantial weight under N.D.C.C. § 14-09-06.2(1)(i). Because the court had discretion in how much weight to give that preference, and because it was impossible to determine how significantly L.G.’s in-chambers statements influenced the best-interests analysis, reversal was required. The court remanded with instructions to conduct the best-interests analysis without relying on the interview or the investigator’s report, or alternatively to hold a supplemental evidentiary hearing.
Key Takeaways
- An in-chambers child interview in a North Dakota parenting-time proceeding requires both parents’ consent under N.D.R.Ct. 8.13(a); a court may not circumvent this requirement by framing the interview as witness examination under N.D.R.Ev. 614.
- A district court that wishes to rely on a prior parenting investigator’s report in a subsequent modification hearing must give the parties advance notice and a meaningful opportunity to cross-examine the investigator at that hearing; relying on the report without doing so is reversible error.
- Conflict over implementing a parenting plan—including one parent’s interference, inflexibility, and unilateral alteration of exchange times—can constitute a material change in circumstances warranting parenting-time modification without proof of actual harm to the children.
- Errors in admitting evidence are not harmless when the improperly admitted evidence goes to a discretionary best-interests factor and the appellate court cannot determine what weight the trial court gave it.
Why It Matters
This decision reinforces strict procedural guardrails around the use of children’s testimony in North Dakota custody and parenting-time proceedings. Practitioners should note that neither a general evidence rule nor judicial discretion to call witnesses provides an end-run around the parental-consent requirement of N.D.R.Ct. 8.13. Courts and litigants alike must follow the specific procedures governing parenting investigations—including notice and cross-examination rights—each time a prior investigator’s report is offered or relied upon, even when the report was admitted at an earlier proceeding in the same case.
The ruling also illustrates the practical risk of relying on constitutionally sensitive evidence in a discretionary best-interests analysis: because the appellate court cannot reconstruct how much weight the trial court placed on tainted evidence, errors in that context are unlikely to be deemed harmless. Attorneys in modification proceedings should proactively object to procedurally improper evidence and preserve those objections for appeal.