Cull v. Cull (2026 ND 10): Competent, Firsthand Evidence and More-Than-Isolated Harm Required to Earn a Custody-Modification Hearing

I. Introduction

Case: Cull v. Cull, 2026 ND 10 (N.D. Jan. 29, 2026).
Parties: Ashley Marie Cull (mother; movant/appellant) and Andrew James Cull (father; primary residential parent; appellee).
Context: After a stipulated divorce judgment (January 2022) and amended judgment (March 2022) awarding Andrew primary residential responsibility for the parties’ two minor children, Ashley moved in February 2025 to modify primary residential responsibility under N.D.C.C. § 14-09-06.6.
Key issue on appeal: Whether Ashley established a prima facie case entitling her to an evidentiary hearing on modification—specifically, whether her submissions showed (1) a material change in circumstances arising since the prior order and (2) that modification was necessary to serve the children’s best interests.

The Supreme Court of North Dakota affirmed the denial of Ashley’s motion without a hearing, emphasizing the statutory gatekeeping function of the prima facie requirement and the necessity of competent, firsthand evidentiary support—not generalized concerns, hearsay, or conclusions.

II. Summary of the Opinion

The Court held Ashley did not establish a prima facie case under N.D.C.C. § 14-09-06.6 because her allegations, as supported by the competent portions of her declarations, failed to show a material change in circumstances adversely affecting the children or a decline in their condition that would make modification necessary for their best interests.

  • Extended-family childcare: The father’s reliance on his mother for childcare did not constitute a material change absent competent evidence of detriment.
  • School/behavior issues: While school difficulties were acknowledged, Ashley did not provide competent evidence tying the problems to Andrew’s parenting or household structure.
  • Safety incident (Jan. 22, 2025): An isolated pickup miscommunication, without a demonstrated pattern or endangerment, did not establish a material change.
  • Other co-parenting concerns: Communication difficulties and school-district preferences were not supported by sufficient competent evidence to satisfy the prima facie threshold.

Disposition: Affirmed.

III. Analysis

A. Precedents Cited

1. Weber v. Pennington, 2025 ND 105, 22 N.W.3d 726

Weber supplies much of the framework applied in Cull:

  • Gatekeeping function: A moving party two years after the prior order must establish a prima facie case, and the court must deny the motion absent that showing. The opinion reiterates that the process exists to avoid hearings “based on mere allegations alone.”
  • Competent information requirement: Affidavits/declarations must contain competent information, usually requiring firsthand knowledge, and cannot merely state conclusions.
  • Extended family childcare: Cull directly relies on Weber for the principle that use of extended family for childcare is common and consistent with statutory values, and is not a material change unless shown to be detrimental.
  • Causation for school issues: Cull mirrors Weber in requiring evidence that educational deficits are attributable to the custodial parent’s care rather than asserting causation.

In short, Weber v. Pennington functions as the controlling modern articulation of the prima facie standard and is applied in Cull to reject generalized criticisms of the primary-residential parent.

2. Anderson v. Spitzer, 2022 ND 110, 974 N.W.2d 695

Cited via Weber for the proposition that a “material change in circumstances” must adversely affect the child or reflect a general decline in the child’s condition. Cull uses this as a measuring stick: even if a change is alleged (school difficulties; childcare arrangements), the motion fails absent a supported showing of adverse effect linked to the custodial environment.

3. Kerzmann v. Kerzmann, 2021 ND 183, 965 N.W.2d 427

Kerzmann is used in two important ways:

  • Nature of “materiality”: Materiality depends on “the particularities of a given case,” reinforcing that the inquiry is fact-specific.
  • Quality of affidavits: The quoted standard that affidavits are not competent if they fail to show personal knowledge or state conclusions without evidentiary facts becomes central to Cull’s treatment of hearsay-laden statements (“told by others,” “community members observed,” children “told them”).

The Court also references Kerzmann to illustrate what can qualify as prima facie endangerment-type allegations (e.g., failure to obtain recommended counseling or dental care), contrasting that with Ashley’s isolated pickup incident and less-supported claims.

4. Jensen v. Jensen, 2023 ND 22, 985 N.W.2d 679

Cited for the standard of review: whether a prima facie case exists is a question of law reviewed de novo. In practice, this means the Supreme Court independently evaluates the sufficiency of the motion record for the prima facie threshold, while still filtering out incompetent submissions.

5. Carvalho v. Carvalho, 2025 ND 129, 23 N.W.3d 890

Used to reinforce that “mere allegations are not enough” to establish a prima facie case. Cull treats this not as a slogan but as an evidentiary rule: the moving papers must contain admissible-quality facts capable of supporting a modification if proved.

6. Klundt v. Benjamin, 2021 ND 149, 963 N.W.2d 278

Quoted (through Kerzmann) for the idea that declarations are incompetent when they lack a foundation for personal knowledge or substitute conclusions for evidentiary facts. This bolsters the Court’s refusal to credit statements that do not identify who observed what, when, and how the declarant knows it.

7. McCay v. McCay, 2024 ND 130, 9 N.W.3d 687

Cited for the rule that a material change can be shown if the child’s present environment “may endanger” physical or emotional health or impair emotional development. Cull acknowledges that endangerment allegations can satisfy prima facie requirements—but stresses the need for competent evidence and something more than an isolated lapse.

8. Tank v. Tank, 2004 ND 15, 673 N.W.2d 622, and Volz v. Peterson, 2003 ND 139, 667 N.W.2d 637

These decisions illustrate the category of allegations that can require a hearing: credible assertions showing potential endangerment (e.g., exposure to drugs/cigarettes, sneaking out undetected) can demonstrate a material change needing further review. Cull distinguishes them by characterizing the church pickup incident as a one-time miscommunication with no demonstrated pattern or ongoing danger.

9. Johnson v. Staiger, 2025 ND 198, 27 N.W.3d 692

This precedent supplies the “isolated incident” limitation: even serious misconduct (there, “an isolated incident of a parent driving under the influence”) does not automatically mandate a finding of material change. Cull uses that reasoning to hold that one safety lapse—without evidence of repetition, escalation, or systemic neglect—does not cross the prima facie threshold.

B. Legal Reasoning

1. The statutory two-part prima facie test is a substantive filter

Under N.D.C.C. § 14-09-06.6(6), the movant must show (i) a material change in circumstances arising since the prior order (and unknown at the time), and (ii) that modification is necessary for the child’s best interests. The Court treats this as a genuine screening mechanism—not merely a pleading standard. The motion is decided “on briefs” and must be denied unless the threshold is met. (N.D.C.C. § 14-09-06.6(4).)

2. “Competent information” is decisive at the prima facie stage

A central move in Cull is the Court’s insistence that prima facie allegations must be supported by declarations grounded in personal knowledge with concrete facts. The opinion approves the district court’s approach of discounting:

  • statements based on what others said (“told by others”);
  • reports of what children allegedly said, when offered without proper foundation;
  • vague references to what “community members” observed;
  • conclusory assertions about parenting quality without specifics.

This reflects a practical evidentiary concern: if a hearing is granted based on non-falsifiable generalities, the prima facie requirement becomes meaningless. Cull reaffirms that the movant must present enough admissible-quality facts that, if proved, would support a modification that could be affirmed on appeal.

3. No “material change” where the alleged condition existed at judgment

The Court rejects Ashley’s reliance on Andrew’s farming occupation because it was known at the time of the original and amended judgments. A fact cannot serve as a post-judgment “change” when it is essentially the same circumstance the court already considered. This reasoning prevents relitigation of the original custody decision under the label of modification.

4. Extended-family childcare is not a material change without a supported showing of detriment

The opinion’s most concrete doctrinal statement is its application of Weber v. Pennington: reliance on extended family for childcare—especially by a working parent—is normal, statutorily consistent with the importance of family/community, and not a basis for modification unless it is shown to harm the children.

In Cull, even assuming some degree of grandmother involvement, Ashley did not provide competent evidence that the arrangement produced instability, neglect, harm, or unmet needs. Thus, the asserted “delegation” did not become a legally material change.

5. School problems require supported causation, not speculation

The Court accepts that the children have behavioral and academic challenges but finds the motion fails because Ashley did not support her claims about Andrew’s household routine, screen time, homework, or bedtimes with competent, firsthand facts, and did not establish a causal connection between those alleged parenting choices and the school issues. The Court thus demands a logically supported link between the alleged change and adverse effects—consistent with the “adversely affect” requirement drawn from Anderson v. Spitzer.

6. Safety concerns: potential endangerment can be material, but isolated events may not suffice

The Court acknowledges the endangerment line of cases (McCay v. McCay, Tank v. Tank, Volz v. Peterson) and confirms that credible endangerment allegations can raise a prima facie case. But it concludes the January 22, 2025 incident, as supported by competent declarations, was a one-off miscommunication, with children “safe, warm, and quickly located,” and no evidence of repetition or systemic risk.

By invoking Johnson v. Staiger, the Court situates the decision within a broader principle: a single incident—even concerning—does not automatically compel a finding of material change. The movant must show either gravity sufficient to demonstrate current endangerment or a pattern suggesting ongoing risk.

C. Impact

1. Reinforced evidentiary rigor at the “hearing entitlement” stage

Cull strengthens the practical message that the prima facie stage is not a mini-trial, but it is also not a “notice pleading” environment. Movants must gather and present competent evidence early—especially where claims concern what happens in the other parent’s home.

2. Clarification on common custody-modification themes

  • Work schedule and childcare assistance: Working demands and family help are unlikely to qualify as “material changes” absent demonstrated adverse effects on the child.
  • School performance allegations: The decision signals that courts will look for concrete proof and causal connection, not attribution-by-assumption.
  • Single safety incidents: Even where potential harm is alleged, an isolated lapse may fail to establish material change without evidence of recurrence, escalation, or broader neglect.

3. Litigation behavior and drafting implications

The case incentivizes careful motion practice: declarations should identify dates, events, personal observations, and documentary support (e.g., school communications, attendance logs, parenting-time exchanges, medical records) and should avoid “community reports” unless properly supported. Cull also suggests that when endangerment is alleged, showing frequency/pattern (or severe ongoing risk) will be pivotal.

IV. Complex Concepts Simplified

  • Primary residential responsibility: North Dakota’s term for the parent with primary custody (where the child primarily resides), alongside parenting time for the other parent.
  • Modification: Changing an existing custody/residential responsibility order after it has been entered.
  • Prima facie case (in this setting): A threshold showing made on written submissions that, if the alleged competent facts were proven at a hearing, could justify modification. It is meant to screen out weak or unsupported cases before requiring a full evidentiary hearing.
  • Competent information / firsthand knowledge: Facts the declarant personally observed or knows directly, not rumors, secondhand accounts, or broad conclusions. Courts may discount hearsay-like statements at the prima facie stage.
  • Material change in circumstances: A significant change occurring after the prior order (and unknown then) that negatively affects the child or reflects a decline in the child’s condition.
  • Causal connection: Evidence that the complained-of parenting practice is actually contributing to the child’s difficulties (e.g., a supported link between routines at home and school performance), not simply temporal association.

V. Conclusion

Cull v. Cull reaffirms North Dakota’s strict prima facie gatekeeping for post-judgment custody modification under N.D.C.C. § 14-09-06.6. The decision emphasizes three practical rules: (1) movants must present competent, firsthand, fact-specific evidence; (2) common realities such as extended-family childcare and demanding work schedules are not “material changes” without proven detriment; and (3) an isolated safety lapse, without evidence of recurrence or systemic risk, may not satisfy the material-change requirement. Collectively, the opinion strengthens predictability and finality in custody orders while preserving the ability to obtain a hearing when supported facts show genuine harm or endangerment.