Charvat v. Charvat

MARING, Justice,

concurring in the result.

[¶ 19] I, respectfully, concur in the result. I am concerned with the continual decline in the quality of evidence required to establish a prima facie case justifying modification in primary residential responsibility and an evidentiary hearing.

[¶ 20] A moving party must present a competent affidavit supported by firsthand knowledge with specific and detailed evi-dentiary facts establishing a significant change that adversely impacts the child’s well-being to establish a prima facie case. See generally Jensen v. Jensen, 2013 ND 144, 835 N.W.2d 819 (Maring, J., dissenting). “‘[T]he important factor in any change of custody proceeding is the stability of the child’s relationship with the custodial parent,’ and ‘it is the continuity of the custodial parent-child relationship that is critical.’ ” Kelly v. Kelly, 2002 ND 37, ¶ 44, 640 N.W.2d 38 (Maring, J., concurring in the result) (quoting Ramstad v. Biewer, 1999 ND 23, ¶¶ 14-15, 589 N.W.2d 905). Allowing evidentiary hearings for modification of primary residential responsibility based on hearsay and conclusory allegations, undermines the stability and continuity of the custodial parent-child relationship.

[¶ 21] Although I agree with the majority’s opinion that Brandon Charvat meets the “bare minimum” threshold in this case, I continue to disagree with the majority’s interpretation of our caselaw and the applicable statute. I adhere to my opinion that “it is clear the Legislature intended to require parties to meet the higher standard showing that there has been a significant or important change of circumstances that has a negative impact on the well-being of the child.” Kelly, 2002 ND 37, ¶ 50, 640 N.W.2d 38 (Maring, J., concurring in the result); see Jensen, 2013 ND 144, ¶ 25, 835 N.W.2d 819 (Maring, J., dissenting); Mock v. Mock, 2004 ND 14, ¶ 34, 673 N.W.2d 635 (Maring, J., dissenting); Tank v. Tank, 2004 ND 15, ¶ 44, 673 N.W.2d 622 (Maring, J., dissenting).

[¶ 22] MARY MUEHLEN MARING.