Background
In 2022, Khilyn Craig and Dwayne Vormestrand stipulated to equal residential responsibility for their minor child, K.J.V. The agreed judgment contained an automatic modification provision granting Craig primary residential responsibility once the child reached school age and permitting Craig to relocate out of North Dakota at that time. The parties had a troubled history of noncompliance with the parenting schedule, and in December 2023 the Ward County District Court admonished both parties to follow its orders or face contempt.
In early 2024, Craig filed motions to enforce the automatic modification provision and to relocate with K.J.V. to Texas; Vormestrand cross-moved for primary residential responsibility. Without waiting for a ruling, Craig moved K.J.V. to Texas in July 2024. From that point forward she refused to return the child to North Dakota, limited Vormestrand’s electronic contact to three calls per week (which she monitored and sometimes terminated), and initially withheld her new address and the child’s school and healthcare information from Vormestrand. His last in-person contact with his daughter before the December 2024 hearing was Father’s Day 2024.
After a December 18, 2024 evidentiary hearing, District Court Judge Todd L. Cresap entered an amended judgment awarding Vormestrand primary residential responsibility. Craig — who had been self-represented since her attorney withdrew in August 2024 — moved for a new trial or reconsideration, which the district court denied. Craig appealed, raising claims of irregularities in the proceedings, accident or surprise, insufficient evidence, and legal error in the court’s analysis of the domestic violence best-interests factor.
The Court’s Holding
The North Dakota Supreme Court, in an opinion authored by Chief Justice Lisa Fair McEvers and joined by all five justices, affirmed both the amended judgment and the order denying a new trial. The Court acknowledged that the district court had misread N.D.C.C. § 14-09-06.2(1)(j) by suggesting that only domestic violence serious enough to trigger the statutory rebuttable presumption need be considered — a legal error the Court flagged expressly. Under controlling precedent, any credible evidence of domestic violence must be weighed as a best-interests factor even if it falls below the threshold required for the presumption. Nevertheless, the Court found the error harmless because the district court independently determined that Craig’s domestic violence allegations lacked credibility; Craig’s accusations at the original hearing were not made under oath, and her credibility was otherwise found to be questionable.
The Court sustained the district court’s finding that best-interests factor (e) — each parent’s willingness to facilitate a relationship between the child and the other parent — strongly favored Vormestrand. Craig’s unilateral relocation while contested motions were pending, her refusal to return the child for Vormestrand’s parenting time, her restriction and monitoring of electronic contact, and her initial failure to share the child’s address, school, and medical providers all supported the conclusion that she would not foster Vormestrand’s relationship with K.J.V. The Court declined to reweigh credibility determinations or factual findings, as is its standard practice in bench trials.
The Court also rejected Craig’s procedural challenges: the district court did not abuse its discretion by requiring her to testify from memory rather than notes (she never established a proper foundation under N.D.R.Ev. 612 or even objected at the time); North Dakota law affords no special procedural leniency to self-represented litigants, including those who allege domestic violence; the automatic modification provision was rendered moot once the court resolved residential responsibility on the merits; and Craig’s relocation to Texas while motions were pending was not the kind of “accident or surprise” cognizable under N.D.R.Civ.P. 59(b)(3).
Key Takeaways
- Even domestic violence evidence that does not rise to the level triggering the statutory rebuttable presumption under N.D.C.C. § 14-09-06.2(1)(j) must still be considered as a best-interests factor — and when credible, it dominates the hierarchy of factors; courts that treat the threshold for the presumption as a threshold for consideration at all commit legal error.
- A parent who relocates a child out of state without court approval or the other parent’s consent — particularly while competing motions remain pending — risks having that conduct weigh heavily against them under the best-interests analysis, especially on the factor addressing willingness to facilitate the other parent’s relationship with the child.
- North Dakota extends no special procedural accommodation to self-represented litigants, even those who allege domestic violence; pro se parties are held to the same evidentiary and procedural rules as counsel-represented parties.
- An error in the district court’s legal reasoning will not warrant a new trial if it is harmless — here, the credibility finding independently disposed of the domestic violence issue regardless of the court’s misstatement of the law.
Why It Matters
This decision reinforces North Dakota’s established rule that domestic violence evidence carries substantial weight in custody proceedings regardless of severity, and it serves as a clear warning to practitioners that courts must articulate a credibility-based reason — not merely a severity-based one — when declining to give weight to such evidence. The opinion also sends a pointed message to parents contemplating relocation while custody litigation is ongoing: unilateral action taken without court authorization is likely to be treated as strong evidence of an unwillingness to support the other parent’s relationship with the child, potentially reversing whatever residential advantage a prior stipulation or automatic modification clause may have conferred.
For family law attorneys, the case highlights the importance of advising clients to strictly comply with existing orders and to seek judicial approval before any relocation, even when they believe a prior judgment already authorizes the move. It also underscores that domestic violence survivors who are self-represented must proactively develop their own evidentiary record — including proper oath-taking and timely foundation for exhibits — because North Dakota courts will not relax procedural standards or take an inquisitorial role to fill evidentiary gaps on their behalf.