Clarifying N.D.C.C. § 14-09-06.6: Original Determination of Primary Residential Responsibility in Joint Custody Modifications

Introduction

In Kinden v. Kinden, 2025 ND 68, the Supreme Court of North Dakota confronted cross-motions to modify residential responsibility under a prior joint custodial judgment. Sarah Anne Knell and Catlin Jacob Kinden, the parents of four children, disagreed over the proper application of the two-year moratorium and heightened standards in N.D.C.C. § 14-09-06.6. Knell argued the district court should apply the “heightened requirements” of subsection (5), restarting the two-year moratorium when the September 2022 amended judgment was entered. Kinden asserted the less onerous standard in subsection (6) governed. The court rejected both contentions, holding that § 14-09-06.6 only applies when a prior order has designated one parent as the child’s primary residential custodian—and when parents share joint or equal responsibility, the court must make an original primary-custody determination under the best-interest framework of N.D.C.C. § 14-09-06.2.

Summary of the Judgment

After a lengthy procedural history involving three motions to modify and multiple stipulations, the district court held an evidentiary hearing in July 2024. It concluded § 14-09-06.6 did not apply because the existing judgment had established equal residential responsibility, not primary responsibility. The court therefore conducted an original best-interest analysis under § 14-09-06.2(1), weighing factors such as parental emotional ties, stability of home environments, medical care concerns, and the children’s schooling. Finding Catlin Kinden more attentive to the younger child’s Type 1 diabetes management and the children’s educational needs, the court awarded him primary residential responsibility. On appeal, the Supreme Court affirmed, clarifying that § 14-09-06.6 governs only modifications of prior primary-custody orders and overruling earlier decisions to the contrary.

Analysis

1. Precedents Cited

Martodam v. Martodam (2020 ND 70): Previously held § 14-09-06.6 applied to joint residential responsibilities by implication.
Dickson v. Dickson (2018 ND 130): Similarly extended § 14-09-06.6 to modify joint custodial judgments.
Hageman v. Hageman (2013 ND 29): Treated joint custody modifications under § 14-09-06.6.
Mairs v. Mairs (2014 ND 132): Recognized that when parents share joint responsibility, “an original determination to award primary residential responsibility is necessary.”
Maynard v. McNett (2006 ND 36): Explained the need for original primary-custody determinations upon relocation when joint responsibility exists.

Kinden overruled the extensions of § 14-09-06.6 found in Martodam, Dickson, and Hageman, reaffirming Mairs and Maynard as the correct approach when no prior primary-residential-responsibility order exists.

2. Legal Reasoning

The Supreme Court began with the plain language of § 14-09-06.6, finding its title and text refer exclusively to modifications of “primary residential responsibility.” Subsections (1)–(2) impose a two-year bar on new motions; subsection (5) provides exceptions to that bar; subsection (6) allows a post-two-year modification upon proof of a material change and best-interest necessity. The Legislature never authorized application of these time-limiting provisions to judgments awarding equal or joint custody. Relying on statutory interpretation principles, the Court refused to read into the statute a scope broader than its terms. Because Knell and Kinden’s judgment provided for equal residential responsibility, there was no “order establishing primary residential responsibility” to modify under § 14-09-06.6. Instead, the district court properly conducted an original best-interest analysis under N.D.C.C. § 14-09-06.2(1).

On the merits, the Court applied the clearly erroneous standard to the district court’s finding of primary residential responsibility in favor of Mr. Kinden. It reviewed the court’s consideration of factors (a) through (m) — emotional ties, ability to provide, home stability, facilitation of the other parent’s relationship, false allegations, and other relevant considerations — and concluded each finding was supported by the record and not an erroneous view of the law.

3. Impact

Kinden v. Kinden establishes critical clarity for North Dakota family courts and practitioners:

§ 14-09-06.6’s two-year moratorium and heightened-requirements subsections only govern post-judgment motions when there is an existing primary-custody order.
Motions to modify joint or equal residential responsibility judgments require an original primary-custody determination under the best-interest factors of § 14-09-06.2.
Prior North Dakota cases that applied § 14-09-06.6 to joint custody modifications are overruled.

Attorneys should now draft and argue modification motions for joint custody cases as original best-interest disputes, rather than wrangle over moratorium exceptions.

Complex Concepts Simplified

Residential Responsibility: The general duty of a parent to provide a home for a child. “Equal residential responsibility” means each parent has 50% or more of the time; “primary residential responsibility” means one parent has more than 50%.
Two-Year Moratorium (N.D.C.C. § 14-09-06.6(1)–(2)): A waiting period before a parent may seek to modify primary custody, subject to certain exceptions like endangering the child or a six-month change in custody.
Best-Interest Factors (N.D.C.C. § 14-09-06.2(1)): A list of 13 considerations—emotional ties, parental capacity, stability, harmful allegations, etc.—that guide courts in determining a child’s welfare when awarding custody.
Original Determination vs. Modification: When no prior primary-custody order exists, a court does an “original” best-interest analysis rather than applying statutory bars to a “modification” motion.

Conclusion

Kinden v. Kinden decisively confines N.D.C.C. § 14-09-06.6 to its text: modifying only pre-existing primary residential responsibility orders. In joint or equal custody contexts, family courts must bypass the moratorium provisions and conduct an original best-interest inquiry under § 14-09-06.2. This clarification streamlines modification proceedings, overrules inconsistent precedent, and reaffirms that the child’s welfare remains the paramount concern in every custody dispute.