Domestic Violence Without Expiration: Clemenson v. Clemenson and the Scope of North Dakota’s Custody Presumption

Domestic Violence Without Expiration: Clemenson v. Clemenson and the Scope of North Dakota’s Custody Presumption

I. Introduction

In Clemenson v. Clemenson, 2025 ND 195, the North Dakota Supreme Court addressed two significant questions at the intersection of domestic violence and child custody (residential responsibility):

  1. Whether the domestic violence presumption in N.D.C.C. § 14‑09‑06.2(1)(j) applies in a modification proceeding when the parent who committed domestic violence already enjoys equal residential responsibility.
  2. Whether the statute requires that an incident of domestic violence involving serious bodily injury be “within a reasonable time proximate to the proceeding” in order to trigger the presumption.

The case arises from a post‑divorce dispute between Cole Clemenson (father, appellant) and Ashlyn Clemenson (mother, appellee) concerning residential responsibility for their two children, E.C. (born 2012) and A.C. (born 2015). The parties originally stipulated to a week‑on/week‑off shared arrangement. After separation, Ashlyn moved to Bottineau, North Dakota, with her boyfriend and their child (a half‑sibling of E.C. and A.C.).

Following this move—conceded by both parties to be a “material change in circumstances”—both Cole and Ashlyn moved to modify residential responsibility. Cole sought to become the primary residential parent; Ashlyn cross‑moved for primary residential responsibility herself. The district court, after trial, designated Ashlyn as the primary residential parent and granted Cole parenting time.

Cole appealed, arguing chiefly that the district court:

  • Improperly applied the domestic violence presumption in § 14‑09‑06.2(1)(j),
  • Misinterpreted the “proximate to the proceeding” requirement,
  • Clearly erred in finding an incident of serious bodily injury, and
  • Mishandled the remaining statutory best‑interest factors.

The Supreme Court affirmed the amended judgment. In doing so, it clarified the reach of the domestic violence presumption in custody cases—especially its applicability to historical serious violence and to modification proceedings—even where the offending parent previously shared equal time.

II. Summary of the Opinion

A. Procedural and Factual Background

Key facts and procedural steps include:

  • The parties married in 2015 and have two children, born in 2012 and 2015.
  • Cole pleaded guilty to simple assault–domestic violence in 2013 and in 2021 for incidents involving Ashlyn; both cases resulted in pretrial diversion.
  • The parties divorced by stipulation in June 2022, agreeing to equal shared primary residential responsibility (week‑on/week‑off).
  • In May 2024, they stipulated to an amended judgment to adjust child support, again reflecting equal residential responsibility.
  • In July 2024, Cole moved to modify residential responsibility, seeking to become the primary residential parent; Ashlyn responded and filed her own motion for primary residential responsibility.
  • Both parties agreed that Ashlyn’s move to Bottineau was a material change in circumstances.
  • A two‑day trial was held in January 2025. The district court:
    • Applied the domestic violence presumption in § 14‑09‑06.2(1)(j) against Cole,
    • Designated Ashlyn as the primary residential parent,
    • Granted Cole alternating‑weekend parenting time during the school year and alternating weeks in the summer.

B. Issues on Appeal

Cole challenged the district court’s amended judgment on four main grounds:

  1. The court clearly erred in applying the domestic violence presumption under N.D.C.C. § 14‑09‑06.2(1)(j), particularly because he already shared equal residential responsibility before modification.
  2. The court misinterpreted § 14‑09‑06.2(1)(j) by failing to require that the incident causing serious bodily injury be “proximate to the proceeding.”
  3. The court clearly erred in finding that an incident of domestic violence in 2013 amounted to serious bodily injury.
  4. The court clearly erred in its weighing and findings on the remaining best‑interest factors in § 14‑09‑06.2(1).

Ashlyn, in turn, argued that Cole’s appeal was frivolous and requested attorney’s fees under N.D.R.App.P. 38.

C. Holding

The Supreme Court held:

  • The domestic violence presumption in § 14‑09‑06.2(1)(j) applies even when the offending parent previously enjoyed equal residential responsibility and seeks modification; there is no statutory exception.
  • Under § 14‑09‑06.2(1)(j), the requirement that domestic violence be “within a reasonable time proximate to the proceeding” applies only to a “pattern of domestic violence”, not to a single incident resulting in serious bodily injury or involving a dangerous weapon.
  • The district court did not clearly err in finding that an incident of domestic violence by Cole caused “serious bodily injury”—based on Ashlyn’s testimony of punching and choking that caused “extreme pain,” which fits the statutory definition.
  • The district court’s evaluation of the remaining best‑interest factors was supported by the evidence and not clearly erroneous.
  • Cole’s appeal was not frivolous; attorney’s fees under N.D.R.App.P. 38 were denied.

III. Analysis

A. Precedents and Authorities Cited

1. Standard of Review: Kinden and Boldt

The Court reiterated that findings on primary residential responsibility are reviewed under the clearly erroneous standard:

  • Kinden v. Kinden, 2025 ND 68, ¶ 16, 19 N.W.3d 811. A factual finding is clearly erroneous if:
    1. Induced by an erroneous view of the law;
    2. Unsupported by evidence; or
    3. The reviewing court, on the entire record, is left with a definite and firm conviction a mistake has been made.
  • Boldt v. Boldt, 2021 ND 213, ¶ 8, 966 N.W.2d 897. Appellate courts do not reweigh evidence, reassess witness credibility, or substitute their judgment merely because they might have reached a different decision.

These principles framed the Court’s reluctance to disturb the district court’s findings, especially regarding credibility and balancing of best‑interest factors.

2. Domestic Violence Presumption and Prior Cases: Laib and Zuraff

Cole relied heavily on Laib v. Laib, 2008 ND 129, 751 N.W.2d 228 for the proposition that once a parent has been awarded custody (or shared custody), pre‑divorce domestic violence should not later be used to remove that custody unless the presumption is rebutted by clear and convincing evidence. He argued this implied or suggested an exception when the offending parent already holds residential responsibility.

The Supreme Court clarified that Laib does not address the specific question in Clemenson—namely, whether the domestic violence factor can be applied against a parent who already enjoys equal residential responsibility and is now seeking modification. Laib established that:

“[W]here pre‑divorce domestic violence triggers the presumption against an award of custody, custody may not be changed to the perpetrator unless the court finds by clear and convincing evidence that the presumption has been rebutted.”

However, it did not carve out exceptions to the presumption based on prior custody arrangements.

Instead, the Court pointed to Zuraff v. Reiger, 2018 ND 143, ¶¶ 2–10, 911 N.W.2d 887, where the domestic violence factor was applied against a parent in a modification proceeding. Zuraff demonstrates that § 14‑09‑06.2(1)(j) remains applicable even after an initial custody or parenting‑time arrangement is in place.

3. Statutory Interpretation: Helland, FreeEats, and the Use of “Or”

The Court’s central statutory analysis relied on established interpretive principles:

  • State v. Helland, 2025 ND 63, ¶ 23, 18 N.W.3d 882. Statutory interpretation is a question of law reviewed de novo; the primary goal is to ascertain legislative intent, beginning with the statute’s plain language and ordinary meaning.
  • State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶ 14, 712 N.W.2d 828. The word “or” is disjunctive and ordinarily indicates alternatives—different things or actions.

Applying these rules, the Court parsed N.D.C.C. § 14‑09‑06.2(1)(j) and concluded that the proximity requirement applies only to a pattern of domestic violence, not to incidents involving serious bodily injury or dangerous weapons.

4. Earlier Breakdowns of Factor (j): Selzler and Tulintseff

The Court validated its interpretation of factor (j) by citing its prior breakdown in:

  • Selzler v. Selzler, 2001 ND 138, ¶ 17, 631 N.W.2d 564;
  • Tulintseff v. Jacobsen, 2000 ND 147, ¶ 9, 615 N.W.2d 129.

In those cases, factor (j) was described as giving rise to the presumption in three distinct scenarios:

  1. One incident of domestic violence resulting in serious bodily injury;
  2. One incident of domestic violence involving a dangerous weapon;
  3. A pattern of domestic violence within a reasonable time proximate to the proceeding.

This prior parsing matches the Court’s present reading: only the third scenario has an explicit temporal limitation.

5. Serious Bodily Injury: N.D.C.C. § 12.1‑01‑04(30)

The Court relied on the criminal code’s definition of “serious bodily injury”:

“‘Serious bodily injury’ means a bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ, a bone fracture, or impediment of air flow or blood flow to the brain or lungs.”
— N.D.C.C. § 12.1‑01‑04(30) (emphasis added).

This definition is crucial because it confirms that extreme pain alone may qualify as serious bodily injury for purposes of triggering the domestic violence presumption.

6. Harmless Misstatements: Peterka v. Janda

The Court acknowledged that the district court misattributed which incident caused Ashlyn “extreme pain.” However, it applied:

Peterka v. Janda, 2025 ND 38, ¶ 9, 17 N.W.3d 558: Appellate courts review the record and findings as a whole, and if the controlling findings are supported by the evidence, they will be upheld despite immaterial misstatements.

Because the record contained testimony that at least one domestic violence incident caused extreme pain, the misstatement as to which specific incident was immaterial.

7. Best‑Interest Factors and Appellate Restraint: Toppenberg

When reviewing the application of the remaining best‑interest factors, the Court again emphasized appellate restraint:

Toppenberg v. Toppenberg, 2025 ND 121, ¶ 10, 23 N.W.3d 751. Under the clearly erroneous standard, courts do not reweigh evidence.

It also reaffirmed that while a court must consider all 13 factors in § 14‑09‑06.2(1), it need not make express findings on each factor when the evidence does not support a distinct finding. This reiterates Kinden.

8. Frivolous Appeals and Attorney’s Fees: Carrier and Rule 38

On the issue of attorney’s fees, the Court cited:

  • N.D.R.App.P. 38: Allows an award of just damages and costs, including attorney’s fees, if an appeal is frivolous or dilatory.
  • State v. Carrier, 2025 ND 41, ¶ 16, 17 N.W.3d 577. Defines a frivolous appeal as one that is “flagrantly groundless, devoid of merit, or demonstrates bad faith in pursuing the litigation.”

Although Cole’s arguments ultimately failed, the Court concluded the appeal was neither groundless nor pursued in bad faith and declined to impose fees.

B. Legal Reasoning

1. Applicability of the Domestic Violence Presumption Despite Prior Equal Residential Responsibility

Cole’s first line of attack was that § 14‑09‑06.2(1)(j) should not apply because he already possessed equal residential responsibility under a prior stipulated judgment. He contended that the domestic violence presumption was aimed at initial custody decisions, not at stripping previously granted parental responsibility from a parent who had been co‑parenting.

The Supreme Court rejected this view as grounded in an erroneous reading of the statute. It found:

  • The language of § 14‑09‑06.2(1)(j) is unambiguous and contains no exception for parents who already exercise equal residential responsibility.
  • The statute simply states that if the court finds credible evidence that domestic violence has occurred, and one of the listed conditions (serious bodily injury, use of a dangerous weapon, or a proximate pattern) exists, a rebuttable presumption arises that the perpetrator may not be awarded residential responsibility.
  • Nothing in the text suggests the presumption is quenched or waived because the parties previously agreed to an equal‑time arrangement.

Referencing Zuraff, the Court underscored that the domestic violence factor is fully operative in modification proceedings, even when an offending parent is the moving party. The Court’s analysis reinforces that best‑interest determinations are not frozen in time; prior domestic violence remains relevant whenever residential responsibility is before the court.

2. Interpretation of § 14‑09‑06.2(1)(j): The “Proximity” Requirement and Disjunctive Structure

The central statutory question was whether, under § 14‑09‑06.2(1)(j), an incident causing serious bodily injury must also be “within a reasonable time proximate to the proceeding” to trigger the presumption.

Section 14‑09‑06.2(1)(j) provides (in relevant part):

If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child.

The Court’s reasoning proceeded in steps:

  1. Textual breakdown and the word “or”
    • The statute first requires a finding of “credible evidence that domestic violence has occurred.”
    • It then lists three alternative aggravating circumstances, linked by the disjunctive “or”:
      1. One incident resulting in serious bodily injury;
      2. One incident involving use of a dangerous weapon;
      3. A pattern of domestic violence within a reasonable time proximate to the proceeding.
    • Under FreeEats, “or” is disjunctive; each item is an independent alternative.
  2. Placement of the “proximate to the proceeding” clause
    • The phrase “within a reasonable time proximate to the proceeding” appears only in the third alternative (pattern of domestic violence).
    • The Court held that nothing in the text extends this temporal qualifier back to the first two alternatives (serious bodily injury or dangerous weapon).
  3. Consistency with prior case law
    • Selzler and Tulintseff had already deconstructed factor (j) into three separate scenarios, only one of which referenced proximity.
    • Clemenson explicitly aligns with that structure, confirming that no “proximity” condition attaches to the first two scenarios.

Thus the Court held that the domestic violence presumption:

  • Does require proximity if the court is relying on a pattern of domestic violence;
  • Does not require proximity if the court is relying on a single incident causing serious bodily injury or involving a dangerous weapon—even if that incident occurred years earlier.

By characterizing this as an “issue of first impression,” the Court firmly establishes a new, clear rule: serious domestic violence does not “age out” of custody determinations.

3. Serious Bodily Injury and “Extreme Pain”

Cole next argued that the 2013 incident did not rise to the level of “serious bodily injury” under § 12.1‑01‑04(30), and that the district court erred by finding such an injury.

The district court found that:

  • Cole kicked Ashlyn multiple times in 2013, causing internal injury; and
  • In another 2013 simple‑assault case, he punched her.

Ashlyn testified that Cole punched and choked her, causing “extreme pain.” The district court quoted the statutory definition of serious bodily injury, highlighting that it includes injuries that cause “extreme pain”. It mistakenly linked the “extreme pain” testimony to the wrong specific incident, but the Supreme Court classified this as an immaterial misstatement under Peterka.

Importantly, the Supreme Court credited the finding that at least one domestic violence incident caused “extreme pain,” which:

  • Falls squarely within the statutory definition of serious bodily injury;
  • Satisfies factor (j)’s “serious bodily injury” condition; and
  • Triggers the domestic violence presumption without any proximity requirement.

The Court therefore upheld the finding that the presumption applied based on a serious‑bodily‑injury incident, and declined to reach Cole’s further argument about whether there was a pattern of domestic violence proximate to the proceeding, noting that any such discussion would be advisory.

4. Application of Remaining Best‑Interest Factors

Cole argued that the district court:

  • Over‑relied on the domestic violence factor in evaluating the remaining factors; and
  • Failed to “seriously consider” all thirteen statutory best‑interest factors in § 14‑09‑06.2(1).

The Supreme Court noted that:

  • The district court addressed each factor and made explicit findings as to some:
    • Factors (a), (b), and (c) favored neither party;
    • Factor (e) (“slightly”) favored Ashlyn;
    • Factors (d) and (h) favored Cole.
  • The court did not make findings on factors (f), (g), (i), (k), (l), and (m) because neither party presented evidence supporting a specific outcome on those factors.

Relying on Kinden, the Supreme Court reiterated:

“The court must consider the thirteen best interest factors set out at N.D.C.C. § 14‑09‑06.2(1) when making its decision but need not make a finding on each factor.”

Because the record showed that:

  • The district court did consider all factors,
  • Made findings where the evidence warranted them, and
  • Had evidentiary support for those findings,

the Supreme Court concluded no clear error occurred. The Court refused to reweigh the evidence under Toppenberg.

5. Frivolous Appeal and Attorney’s Fees

Finally, Ashlyn requested attorney’s fees on appeal, contending Cole’s arguments were frivolous and imposed unnecessary delay and expense.

Applying Rule 38 and the Carrier standard, the Court found that:

  • Cole’s appeal raised genuine legal questions, including issues of first impression about the reach of § 14‑09‑06.2(1)(j);
  • The appeal was not “flagrantly groundless” or pursued in bad faith;
  • Therefore, it did not meet the high threshold of “frivolous.”

The Court declined to award attorney’s fees.

C. Impact and Future Significance

1. No Temporal Limitation on Serious Domestic Violence Incidents

The most consequential aspect of Clemenson is the Court’s holding that serious domestic violence has no built‑in temporal limitation for purposes of the custody presumption.

Practically, this means:

  • Any single incident of domestic violence that caused serious bodily injury—or involved a dangerous weapon—remains relevant, regardless of how long ago it occurred.
  • So long as there is “credible evidence” that such an incident occurred, the statutory presumption against awarding residential responsibility to the perpetrator can be triggered.

For parents with a history of serious domestic violence, this substantially raises the stakes in any future custody or modification proceeding, even many years later, unless the presumption can be rebutted by clear and convincing evidence.

2. Domestic Violence Presumption Applies in Modification Proceedings, Even After Equal‑Time Arrangements

The Court clearly held that § 14‑09‑06.2(1)(j) applies in modification cases, and it applies even when:

  • The parent who committed domestic violence has already been sharing equal residential responsibility; and
  • The parent with the domestic violence history is the moving party seeking a greater allocation of responsibility.

This sends two important signals:

  1. Stipulated custody agreements do not erase domestic violence.
    Parties cannot “contract out” of the statutory domestic violence framework. Even after years of successful shared parenting, historical serious domestic violence may resurface as a decisive factor when the court re‑examines residential responsibility.
  2. Modification proceedings are not purely forward‑looking.
    While “material change in circumstances” (here, Ashlyn’s move) is required to open the door, the court can then take a fresh look at the parties’ entire domestic violence history when applying best‑interest factors.

3. Evidentiary Focus: Extreme Pain and Serious Bodily Injury

By emphasizing that “extreme pain” satisfies the statutory definition of serious bodily injury, Clemenson places renewed importance on:

  • Victim testimony about the nature and intensity of pain,
  • Medical evidence corroborating internal or non‑visible injuries, where available, and
  • Accurate, detailed findings by district courts describing the injuries suffered.

Practitioners should ensure that domestic violence evidence is presented with enough specificity to clearly fit within § 12.1‑01‑04(30), including testimony on:

  • Whether the pain was “extreme,”
  • Any loss of consciousness, disfigurement, or functional impairment,
  • Breathing or blood flow impediments, and
  • Bone fractures or organ injuries.

4. Guidance to Trial Courts on Best‑Interest Findings

Clemenson reaffirms that:

  • District courts must consider all 13 best‑interest factors but are not required to make written findings on factors where no evidence supports a differentiation between the parents.
  • Misstatements that do not affect the core analysis—so long as the controlling findings are supported—will be deemed harmless on appeal.

The opinion encourages thorough, evidence‑based findings on central issues (such as domestic violence and key parenting factors) while recognizing that courts need not produce exhaustive commentary on every factor in the absence of supporting evidence.

5. Appellate Strategy: Non‑Frivolous Challenges Still Permissible

Finally, the Court’s refusal to label Cole’s appeal “frivolous” despite affirming in full sends a modest but important message: litigants can raise colorable questions about statutory interpretation and application without fear that an unsuccessful appeal alone will result in sanctions.

Especially where an appeal raises an issue of first impression—as here, with the proximity requirement under factor (j)—the Court is more likely to treat the appeal as legitimate, even if it ultimately affirms the lower court.

IV. Complex Concepts Simplified

1. Primary Residential Responsibility vs. Parenting Time

In North Dakota:

  • Primary residential responsibility refers to which parent the child lives with most of the time. It is roughly analogous to “physical custody.”
  • Parenting time is the schedule for when the child spends time with the non‑primary parent (weekends, holidays, summers, etc.).

In Clemenson, Ashlyn was designated the primary residential parent, and Cole received parenting time, including alternating weekends and alternating weeks during the summer.

2. The Domestic Violence Presumption (N.D.C.C. § 14‑09‑06.2(1)(j))

Section 14‑09‑06.2(1)(j) embodies a rebuttable presumption in custody cases:

  • If the court finds:
    1. Credible evidence that domestic violence has occurred; and
    2. Either:
      • One incident causing serious bodily injury; or
      • One incident involving use of a dangerous weapon; or
      • A pattern of domestic violence within a reasonable time proximate to the proceeding,
  • Then the law presumes that the perpetrator should not be awarded residential responsibility for the child.
  • This presumption can be rebutted by clear and convincing evidence that it is nevertheless in the child’s best interests for that parent to have residential responsibility.

Clemenson clarifies that only the “pattern” alternative requires a showing that the violence occurred within a reasonable time of the court proceeding.

3. Serious Bodily Injury

Under N.D.C.C. § 12.1‑01‑04(30), “serious bodily injury” includes not just life‑threatening injuries, but also injuries that cause:

  • Serious permanent disfigurement,
  • Unconsciousness,
  • Extreme pain,
  • Permanent loss or impairment of a bodily function,
  • Bone fractures,
  • Impeded airflow or blood flow to the brain or lungs.

In Clemenson, Ashlyn’s testimony that she experienced “extreme pain” from being punched and choked was enough to support a finding of serious bodily injury.

4. Pattern of Domestic Violence and “Proximate to the Proceeding”

A “pattern” of domestic violence typically means multiple incidents demonstrating a recurring course of abusive conduct. Under § 14‑09‑06.2(1)(j):

  • A pattern must occur within a “reasonable time proximate to the proceeding” to trigger the presumption;
  • By contrast, a single incident involving serious bodily injury or a dangerous weapon need not be temporally proximate.

5. Clearly Erroneous Standard

When the Supreme Court reviews a district court’s factual findings under the “clearly erroneous” standard, it asks:

  • Did the lower court misinterpret the law?
  • Is there evidence in the record to support the finding?
  • Does the appellate court, after reviewing the whole record, have a firm conviction that a mistake was made?

If the answer to all three is “no,” the finding stands—even if the appellate court might have reached a different result had it been the trier of fact.

6. Frivolous Appeals and Rule 38

An appeal is considered “frivolous” when it is:

  • Clearly and obviously without legal or factual basis, or
  • Brought in bad faith to harass, delay, or needlessly increase litigation costs.

Under N.D.R.App.P. 38, a frivolous appeal can lead to an award of damages and attorney’s fees. In Clemenson, the Court found that Cole’s appeal—while unsuccessful—was not frivolous.

V. Conclusion

Clemenson v. Clemenson is a significant development in North Dakota family law jurisprudence, especially regarding the intersection of historical domestic violence and child custody. The decision firmly establishes that:

  • The domestic violence presumption in N.D.C.C. § 14‑09‑06.2(1)(j) applies fully in modification proceedings, even when the offending parent already shares equal residential responsibility and is the moving party.
  • The statutory requirement that domestic violence be “within a reasonable time proximate to the proceeding” limits only the “pattern of domestic violence” scenario, not single incidents involving serious bodily injury or a dangerous weapon.
  • “Serious bodily injury” encompasses injuries causing “extreme pain,” and such injuries, even if years old, can trigger the presumption.
  • District courts must consider all best‑interest factors but need not make explicit findings where no evidence permits a meaningful distinction between parents, and harmless misstatements will not invalidate otherwise sound findings.
  • Colorable challenges to the interpretation of custody statutes, especially on first‑impression questions, will not readily be branded frivolous on appeal.

In practical terms, Clemenson underscores that serious domestic violence leaves a lasting imprint on custody determinations. Parents with such histories face a steep, enduring presumption against being awarded residential responsibility, and courts will apply that presumption whenever residential responsibility is at issue—regardless of prior shared‑custody arrangements or the passage of time. The opinion thus strengthens the protective function of North Dakota’s domestic violence framework within the best‑interest analysis, signaling that the safety and welfare of children and abused parents remain paramount in custody decisions.

Case Details

Year: 2025
Court: Supreme Court of North Dakota

Judge(s)

Crothers, Daniel John

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