Background
Alexis Rustan brought this action seeking primary residential responsibility for C.F.B., the parties’ minor child born in 2016, with Tyler Ball receiving only supervised parenting time. Ball, proceeding pro se from Washington state, agreed to Rustan having primary residential responsibility but sought unsupervised parenting time. C.F.B. has been diagnosed with Level 3 Autism Spectrum Disorder, ADHD, Global Developmental Disability Delay, speech impairment, sensory disorder, and social anxiety — conditions requiring, in the testimony of both Rustan and her mother, essentially around-the-clock hands-on care. C.F.B. faces a serious elopement risk, is prone to dangerous self-harm during meltdowns, and can communicate her needs only through visual aids. She relies on specialized sensory equipment, compression clothing, a dedicated safe space, and multiple ongoing therapies.
Rustan, who holds bachelor’s and master’s degrees in psychology, has been C.F.B.’s primary caregiver since the parties separated when the child was about four years old. Ball relocated to Washington in 2023 and has had in-person contact with C.F.B. only twice since then. At trial, the district court had excluded Ball’s medical evidence as a discovery sanction. The court found Ball’s testimony untrustworthy on significant matters, found he minimized C.F.B.’s conditions, and concluded he had not demonstrated the capability or willingness to provide the specialized supervision, care, and treatment C.F.B. requires.
The district court adopted Rustan’s proposed graduated four-phase parenting plan. Phase 1 provided supervised in-state parenting time, with advancement to unsupervised time conditioned on medical clearance for Ball and professional concurrence that he had acquired the necessary skills. Phases 3 and 4 would permit Ball to have C.F.B. in his home state for summer periods, conditioned on C.F.B. having made “substantial progress” in four developmental domains “as recommended by a professional who is familiar with the minor child’s current situation.” The court also granted Rustan primary decision-making authority, authorized her to obtain a passport for C.F.B. without Ball’s consent, and required equal sharing of uncovered medical and therapeutic expenses. After the district court denied Ball’s post-judgment motions and awarded Rustan $500 in attorney’s fees on a stay motion, Ball appealed.
The Court’s Holding
The North Dakota Supreme Court affirmed the supervised parenting structure, the Phase 1 and Phase 2 advancement conditions, the decision-making and passport provisions, the expense-sharing requirement, and the denial of Ball’s post-judgment motions. The court held that the district court’s findings, read together, provided a discernible factual basis for each challenged provision under the clearly erroneous standard. The medical-certification prerequisite for Phase 1 advancement was upheld as objectively grounded in the court’s specific finding that Ball — who claimed significant disabilities yet was barred from presenting medical evidence by his own discovery failures — had not demonstrated the capacity to care for C.F.B.
However, the court reversed the Phase 3 and Phase 4 advancement provisions, holding that they constituted an improper delegation of judicial authority to a nonjudicial actor. Those phases conditioned Ball’s out-of-state summer parenting time on C.F.B.’s “substantial progress” in four developmental domains as assessed by an unnamed professional, without defining any threshold for progress, setting any timeline, or retaining any mechanism for judicial review. The court found this indistinguishable from the improper delegation condemned in Boyda v. Boyda, 2025 ND 193, and remanded for the district court to establish objective criteria or a mechanism for judicial oversight of professional recommendations.
The court also reversed the $500 attorney’s fee award entered when the district court denied Ball’s stay motion. The district court found only that the motion lacked merit — not that it was frivolous — and the Supreme Court declined to infer frivolousness from a mere lack-of-merit finding. The court denied Rustan’s cross-request for appellate attorney’s fees, noting that Ball’s appeal was not flagrantly groundless given the partial reversal.
Key Takeaways
- Restrictions on parenting time must be supported by findings showing, by a preponderance of the evidence, that unrestricted parenting time is likely to endanger the child’s physical or emotional health; those findings need not follow a rigid formula but must disclose the factual basis with sufficient specificity.
- A graduated parenting plan’s advancement conditions do not constitute improper delegation where the court itself identifies objective, court-defined criteria — but conditions that leave the determinative standards and their application entirely to an unnamed third party, with no retained judicial oversight, are an impermissible transfer of judicial authority.
- A district court’s finding that a post-judgment motion “lacks merit” does not support an attorney’s fee award without a separate finding of frivolousness; courts may not infer frivolousness from a mere no-merit determination.
- A party who fails on appeal to challenge one of multiple independent grounds for a district court ruling abandons any challenge to that ruling.
Why It Matters
This decision refines the line between permissible and impermissible delegation in graduated parenting plans — a recurring issue in North Dakota custody litigation. Attorneys drafting or litigating these plans now have clearer guidance: a court may require medical or professional certification as a gateway condition when the criteria are court-defined and tied to specific findings, but it may not outsource to an unnamed professional the power to set standards and decide whether a parent has met them without retaining a mechanism for judicial review. The distinction between Phase 1–2 (upheld) and Phase 3–4 (reversed) in this case provides a practical template for drafting compliant graduated schedules involving children with complex medical or developmental needs.
The opinion also serves as a caution on attorney’s fees in stay proceedings: labeling a motion as lacking merit is not a finding of frivolousness, and courts must make that specific finding before imposing fee sanctions. Given the increasing frequency of custody disputes involving children with high-support-needs diagnoses like Level 3 ASD, the court’s careful treatment of the evidentiary record — and its willingness to uphold stringent supervised-parenting conditions when the factual basis is adequately stated — signals that North Dakota courts will sustain protective parenting structures for profoundly disabled children where the record supports them.