Custody-Case Sanctions Must Not Prevent Best-Interests Evidence: Limits on Rule 16/37 Evidentiary Exclusion

I. Introduction

Kostelecky v. Erickson, 2026 ND 61, arises from a dispute between unmarried parents, Lukas Kostelecky (plaintiff/appellee) and Charity Erickson (defendant/appellant), over primary residential responsibility, parenting time, and child support for their child (born 2024). After interim proceedings and a later scheduling order, Erickson failed to appear at the pretrial conference. The district court responded with a sweeping sanction: it barred her from introducing any evidence at trial (while allowing cross-examination) and also ordered her to pay $350 in attorney’s fees. At trial, Erickson appeared pro se but was effectively unable to present her side of the custody and parenting-time issues.

On appeal, Erickson raised (1) due process/lack of notice, (2) excessiveness of sanctions, (3) alleged errors in custody and supervised parenting time, and (4) an alleged unexplained deviation from guideline child support. The North Dakota Supreme Court’s decision centers on a critical custody-law constraint: even when sanctions are justified, they cannot be imposed in a way that prevents the court from receiving evidence necessary to decide a child’s best interests.

II. Summary of the Opinion

  • Due process/notice claims: The Court declined to address them because Erickson’s appellate briefing failed to comply with preservation requirements under N.D.R.App.P. 28(b)(7).
  • Sanctions:
    • The Court affirmed the finding that Erickson’s conduct was sanctionable under N.D.R.Civ.P. 16 and affirmed the $350 attorney-fee sanction.
    • The Court reversed the evidentiary sanction barring Erickson from introducing any evidence at trial, holding it was “unduly harsh” in a custody case because it impaired the court’s ability to determine the child’s best interests.
  • Remand: The Court ordered a new trial. It permitted the district court to impose additional sanctions on remand only if they do not impair the best-interests determination.
  • Remaining merits issues: The Court found them unnecessary to reach given the remand for a new trial.

III. Analysis

A. Precedents Cited

1. Appellate briefing and issue preservation

  • Holm v. Holm, 2025 ND 100 (quoting State v. Roller, 2024 ND 180): The Court invoked these cases for the proposition that appellate rules “must be complied with and treated respectfully.” This framing supports a strict enforcement stance toward briefing defects.
  • Edwards v. State, 2025 ND 43: Used as direct authority to decline review when an appellant does not provide citations showing issue preservation as required by N.D.R.App.P. 28(b)(7)(B)(ii). The Court applied this principle to Erickson’s lack-of-notice/due-process arguments, effectively ending that branch of the appeal.

2. Sanctions: discretion, standards of review, and limits

  • Bang v. Cont'l Res., Inc., 2025 ND 131: Cited for the district court’s broad discretion in sanctions (especially in discovery contexts) and for appellate deference. The Court relied on Bang to set the general “abuse of discretion” review posture before identifying custody-specific constraints.
  • Gohner v. Zundel, 411 N.W.2d 75 (N.D. 1987): This is the Court’s most important in-state comparator on the severity of evidentiary sanctions tied to pretrial violations. In Gohner, the Supreme Court upheld striking a counterclaim but held it was an abuse of discretion to strike the answer and jury demand because it effectively prevented the sanctioned party from introducing evidence—an “unduly harsh” consequence. Kostelecky extends Gohner’s “unduly harsh” reasoning into the child-custody context, where the harm is not merely to a litigant’s case but to the court’s ability to assess the child’s welfare.
  • State ex rel. Stenehjem v. Maras, 2021 ND 68 (quoting Nelson v. Nelson, 2019 ND 221): These cases supply the North Dakota definition of “abuse of discretion” (arbitrary/unreasonable/unconscionable action, misapplication of law, or lack of rational mental process). The Court used this standard to measure whether the sanction choice was reasoned and lawful given the nature of the proceeding.
  • Schrodt v. Schrodt, 2022 ND 64 and C & K Consulting, LLC v. Ward Cnty. Bd. of Comm'rs, 2020 ND 93: Cited for the requirement that courts consider multiple factors when imposing sanctions, including the availability of less severe sanctions. These authorities support the Court’s critique that the district court selected an unnecessarily sweeping sanction.

3. The best-interests principle as a constraint on evidentiary exclusion

  • Vetter v. Vetter, 2026 ND 36 and Shively v. Shively, 2025 ND 69: These cases anchor the foundational rule that the child’s best interests are the “paramount consideration” in residential responsibility and parenting time. Kostelecky uses this premise to distinguish custody litigation from ordinary civil disputes when assessing sanction severity.
  • Kelly v. Kelly, 252 Ariz. 371: The Court relied on this out-of-state authority for a custody-specific proposition: courts should consider the impact of sanctions on innocent third parties (children), and evidentiary sanctions that block “potentially significant information” about a child’s best interests are improper.
  • Van Heerden v. Van Heerden, 321 S.W.3d 869: Cited for the policy insight that silencing fact witnesses in custody disputes can be “a disservice to children,” reinforcing the informational needs of best-interests adjudication.
  • Hays v. Gama, 205 Ariz. 99 (quoting Ong Hing v. Thurston, 101 Ariz. 92 and citing Johnson v. Johnson, 64 Ariz. 368): Hays supplies a structured rationale: contempt or similar sanctions should use the “least possible power adequate,” especially when they affect a child, and the court must “consider all relevant factors” in custody, making evidence-exclusion sanctions particularly problematic. Kostelecky adopts the same functional concern: sanctions cannot “unnecessarily interfere” with the court’s duty to decide best interests based on comprehensive information.
  • A.A. v. Ab.D., 246 Md.App. 418 (quoting Kartman v. Kartman, 163 Md. 19): This case articulates the child’s “indefeasible right” to have best interests fully considered and treats that standard as a threshold constraint before applying ordinary abuse-of-discretion review to evidence-preclusion sanctions. Kostelecky mirrors this approach by making the child’s best interests the controlling lens through which sanction permissibility is judged.
  • Rolley v. Sanford, 126 Md. App. 124 and Stapley v. Stapley, 15 Ariz. App. 64: These support the general principle that parental misconduct should not be “visited on the children,” used here to justify limiting sanctions that impair best-interests adjudication.

B. Legal Reasoning

1. The Court’s bifurcated approach: sanctionability vs. sanction scope

The Court carefully separated two questions: (1) whether Erickson violated the rules and was subject to sanctions; and (2) whether the particular sanction chosen was permissible in a custody proceeding. It affirmed the district court’s finding that Erickson violated N.D.R.Civ.P. 16 (failure to appear at a pretrial conference and failure to comply with scheduling obligations), and it affirmed the fee award mandated/authorized by N.D.R.Civ.P. 16(f)(2). The reversal was not about excusing noncompliance; it was about safeguarding the integrity of a best-interests determination.

2. Rules framework: N.D.R.Civ.P. 16(f) and 37(b)(2)(A)(ii)

The district court grounded its authority in N.D.R.Civ.P. 16(f), which allows “any just orders” (including sanctions authorized by Rule 37) if a party fails to appear at a pretrial conference or disobeys a scheduling order. Rule 37(b)(2)(A)(ii) expressly authorizes evidentiary restrictions, including prohibiting a party from introducing designated matters in evidence.

The Supreme Court did not dispute that these rules can authorize evidentiary sanctions in proper circumstances. Instead, it held that the district court’s chosen sanction— prohibiting Erickson “from introducing any evidence whether through testimony, exhibit, or otherwise”—was too broad in a case where the court has an affirmative duty to base its custody decision on the child’s best interests.

3. Why the sanction was “unduly harsh” here

The opinion identifies a concrete, record-based harm: the district court’s own oral findings showed it lacked information about several best-interests factors (e.g., Erickson’s living situation, the child’s development concerns beyond hearsay, Erickson’s home environment, Erickson’s family, and the people she spends time with). This was not speculative. The sanction operated exactly as the Supreme Court warned in Gohner: it functionally withdrew the sanctioned party’s ability to introduce evidence, but in a custody case that deficit also deprives the court of a full evidentiary foundation.

The Court therefore treated the sanction as incompatible with the “paramount” best-interests requirement. It emphasized that sanction power remains broad, but it must be used in a way that does not impair the court’s ability to make a well-informed custody decision.

4. Required consideration of less severe alternatives and third-party effects

Building on Schrodt and C & K Consulting, LLC, the Court underscored that sanctions analysis includes consideration of less severe options. It added a custody-specific refinement (informed by Kelly): courts should also consider the effect on innocent third parties—particularly children. In practical terms, the Court treated the child’s interest in a complete best-interests inquiry as a limiting principle on the evidentiary-exclusion tool.

C. Impact

1. A clear North Dakota custody-specific limit on evidentiary sanctions

Kostelecky establishes (or at least strongly crystallizes) a controlling principle for North Dakota custody litigation: even when a parent’s pretrial noncompliance is sanctionable under N.D.R.Civ.P. 16, a sanction that broadly prevents a parent from introducing evidence at trial is an abuse of discretion if it prevents the court from receiving evidence relevant to the child’s best interests.

2. Practical consequences for district courts

  • Sanctions remain available (including fees), but courts must calibrate them so they do not “adversely impact the child” by undermining the best-interests inquiry.
  • On-the-record reasoning will matter: courts should explain why a chosen sanction is the least severe adequate response and how it preserves the ability to evaluate best interests.
  • Narrow tailoring is implied: sanctions should more often be targeted (e.g., costs, continuance conditions, contempt remedies, limits tied to specific undisclosed items) rather than categorical evidence bans.

3. Consequences for litigants and appellate practice

  • Briefing compliance is outcome-determinative: the Court refused to reach due process arguments because the appellant did not comply with N.D.R.App.P. 28(b)(7), reinforcing that preservation/citation failures can forfeit potentially serious claims.
  • Custody merits may be deferred: even if a party attacks residential responsibility, supervised parenting time, or guideline deviations, the Supreme Court may decline to reach them when procedural error requires a new trial.

IV. Complex Concepts Simplified

Primary residential responsibility
The allocation of where the child primarily lives and which parent is chiefly responsible for day-to-day care (commonly “custody” in everyday language).
Best interests of the child
The controlling standard in custody and parenting-time disputes; the court’s decision must prioritize the child’s welfare over the parents’ competing preferences.
Pretrial conference and scheduling order (N.D.R.Civ.P. 16)
A court-managed process setting deadlines and organizing trial preparation; failing to attend or comply can lead to sanctions.
Discovery/evidentiary sanctions (N.D.R.Civ.P. 37)
Penalties for litigation noncompliance, including limiting what evidence a party can present. In custody cases, Kostelecky warns such limits cannot block relevant best-interests evidence.
Abuse of discretion
An appellate standard of review under which a ruling is reversed only if it is arbitrary, unreasonable, based on legal error, or not the product of a rational decision-making process.
Issue preservation (N.D.R.App.P. 28(b)(7))
A requirement that appellate briefs cite where the issue was raised below (or explain why review is still appropriate). Failure can lead to the issue not being reviewed at all.

V. Conclusion

Kostelecky v. Erickson delivers two core messages. First, appellate courts will enforce briefing and preservation rules strictly, even when constitutional language such as “due process” is invoked. Second—and more significantly for family law—the Supreme Court of North Dakota held that while district courts retain broad sanction authority under N.D.R.Civ.P. 16 and 37, that authority is constrained in custody cases by the court’s paramount obligation to decide the child’s best interests on a full evidentiary record. A categorical ban on a parent introducing any evidence is “unduly harsh” where it deprives the court of relevant information about the child’s welfare.