Goetz v. Goetz (2026 ND 53): Consent-Only In-Chambers Child Interviews and No Reliance on Parenting Investigator Reports Without Notice and Cross-Examination

I. Introduction

Goetz v. Goetz, 2026 ND 53, is a parenting-time modification appeal arising from the parties’ post-divorce disputes over implementation of their parenting plan. Joshua M. Goetz (“Goetz”) and Cassandra B. Goetz, now known as Cassandra Smith (“Smith”), share two minor children, L.G. (2011) and A.G. (2015). After a prior cycle of litigation and remands involving residential responsibility (including Goetz v. Goetz, 2023 ND 53, and Goetz v. Goetz, 2023 ND 120), Goetz sought additional relief in 2024—requesting primary residential responsibility or, alternatively, more parenting time.

The district court denied a change in primary residential responsibility (no prima facie case) but held an evidentiary hearing on parenting time. At that hearing, the court conducted an in chambers interview of L.G. over Smith’s objection under N.D.R.Ct. 8.13, and later relied on both L.G.’s stated preference and a 2021 parenting investigator’s report (from earlier proceedings) when weighing best interests. The Supreme Court addressed three key issues:

  • Whether a material change in circumstances justified revisiting parenting time.
  • Whether an in chambers child interview may occur absent both parents’ consent under N.D.R.Ct. 8.13.
  • Whether the court may rely on an earlier parenting investigator’s report without notice and a renewed opportunity to cross-examine in the current proceeding.

II. Summary of the Opinion

The North Dakota Supreme Court affirmed in part, holding the district court did not clearly err in finding a material change in circumstances supporting modification of parenting time. It reversed in part, holding:

  • The district court erred as a matter of law by conducting an in chambers interview of the minor child without both parents’ consent as required by N.D.R.Ct. 8.13.
  • The district court abused its discretion by relying on the 2021 parenting investigator’s report after the 2024 hearing without providing notice and an opportunity to cross-examine the parenting investigator at that hearing.

The case was remanded for the district court to redo the best-interests analysis without considering the improper in chambers interview or the parenting investigator’s report, or to hold a supplemental evidentiary hearing.

III. Analysis

A. Precedents Cited

1. Material change standard for parenting-time modification

The Court grounded its standard in Fleck v. Fleck, 2023 ND 129. From Fleck, the Court reiterated two doctrinal points central to parenting-time (not custody) modification:

  • A movant must show (1) a material change in circumstances since the prior parenting-time order and (2) the modification is in the child’s best interests.
  • For parenting time, a “material change” means “important new facts” unknown at the time of the initial order, and—critically—does not require an adverse effect on the child or a decline in the child’s condition.

The Court also relied on Prchal v. Prchal, 2011 ND 62 for the proposition that a district court need not use the magic words “material change in circumstances” if its findings substantively establish one. And it used Schurmann v. Schurmann, 2016 ND 69, Hoverson v. Hoverson, 2015 ND 38, and again Prchal to confirm that conflict over implementing a parenting plan can itself be a material change supporting parenting-time adjustment.

2. In-chambers interviews: strict application of N.D.R.Ct. 8.13

The Court treated interpretation of court rules as a question of law (citing Fleck v. Fleck, 2023 ND 129) and framed evidentiary rulings under abuse-of-discretion review (citing In re Skorick, 2020 ND 162). The decisive precedent here was not a prior case, but the Court’s strict reading of N.D.R.Ct. 8.13 itself: an in chambers interview in a parenting-time proceeding is permitted only “if the parents consent.”

The Court rejected Goetz’s attempt to recast the procedure as ordinary witness examination under N.D.R.Ev. 614. Rule 614 allows the court to call and examine witnesses, but it does not authorize excluding the parties or converting testimony into an in-chambers process. By holding that Rule 8.13 is a “specific procedure” for these cases, the Court foreclosed using general evidentiary authority to bypass the consent requirement.

3. Harmless error in non-jury proceedings; mature child preference

On harmless error, the Court applied N.D.R.Civ.P. 61 and relied on In re J.S.L., 2009 ND 43 for the principle that evidentiary error in non-jury cases is “rarely reversible” unless incompetent evidence induced an essential finding that otherwise would not have been made.

The Court then linked the error to the “mature child preference” factor in N.D.C.C. § 14-09-06.2(1)(i), emphasizing the discretionary nature of “may give substantial weight,” citing In re C.A.R., 2020 ND 209. It further underscored the practical importance of a mature child’s preference by citing Johnshoy v. Johnshoy, 2021 ND 108. And it used In re J.C., 2024 ND 9 to explain why an appellate court cannot easily gauge how much improper evidence affected the trial court’s exercise of discretion.

Finally, to reinforce the “essential finding induced by incompetent evidence” framework, the Court cited Haas v. Hudson & Wylie LLP, 2020 ND 65.

4. Parenting investigator reports: evidentiary record and cross-examination

The Court’s treatment of the parenting investigator’s report drew on a line of authority about what the factfinder may consider and the parties’ procedural protections:

  • McAdams v. McAdams, 530 N.W.2d 647: for a court to use an investigator’s report, it should be made part of the evidentiary record.
  • In re J.C., 2024 ND 9: there is a distinction between the court file and the evidentiary record; the finder of fact must rely only on evidence presented in court.
  • Quarne v. Quarne, 1999 ND 188: reversible error occurs when a court relies on an investigator’s report for custody determinations without allowing parties an opportunity to call and cross-examine the investigator or consulted persons.

Although the Court accepted (given the earlier hearing record) that the report functionally entered evidence in 2022, it held that reliance on that report in the separate 2024 parenting-time hearing without notice and an opportunity to cross-examine at that hearing violated the parties’ procedural rights—especially where the report was used to support best-interests findings (including L.G.’s maturity).

B. Legal Reasoning

1. Material change: implementation conflict and uncertainty can justify parenting-time adjustment

Applying the Fleck standard, the Court held the district court’s findings—Smith’s interference and inflexibility regarding exchanges, the parties’ ongoing conflict, and uncertain exchange times—were sufficient. The Court emphasized that, for parenting time, the law does not demand proof of harm to the child. Even though the district court did not use the phrase “material change in circumstances,” its detailed findings satisfied the requirement under Prchal.

2. In chambers interviews: consent is a condition precedent, not a discretionary consideration

The Court treated N.D.R.Ct. 8.13(a)’s “If the parents consent” language as an enforceable gatekeeping requirement. Because Smith expressly objected, the interview “was therefore not permitted under the rule.” The district court’s attempt to proceed nonetheless constituted a legal error, which in turn was an abuse of discretion because it rested on a misapplication of the governing rule.

The Court also rejected the idea that the interview error was harmless. Two features made the error consequential:

  • The district court used the in-chambers statements to support a finding of “maturity” under factor (i), which can substantially affect the weighting of the child’s preference.
  • Once a child is deemed mature, the court has discretion to give “substantial weight” to the preference; the appellate court could not determine how heavily the district court relied on the improper interview.

3. Parenting investigator report: no “silent” reliance across proceedings

The Court’s reasoning turned on notice and adversarial testing. Even where an investigator previously testified and the report was treated as evidence in an earlier phase, the district court cannot later rely on that report in a new proceeding without making clear it will do so and providing an opportunity to cross-examine at that time.

This was not a technicality: the report was used to support an essential best-interests determination (the child’s maturity and preference) and to justify considering “the history of this matter.” Because the report and the (improper) interview were the stated bases for the maturity finding, the Court concluded the best-interests analysis was infected by incompetent evidence and required remand.

C. Impact

  • Bright-line procedural protection for parents: Trial courts must treat N.D.R.Ct. 8.13 consent as mandatory. This reduces the risk that a child’s preferences are obtained through procedures that exclude a non-consenting parent.
  • No end-run around Rule 8.13 via N.D.R.Ev. 614: Courts and litigants cannot re-label an in-chambers interview as “court-called testimony” to justify excluding parties. If the child is to testify without consent to an in-chambers process, courts must use ordinary, on-the-record testimony procedures consistent with due process.
  • Renewed emphasis on notice and cross-examination regarding investigator materials: Even in long-running family cases, courts must avoid “incorporation by memory” of prior reports. If prior materials will influence current best-interests findings, parties must be notified and given a meaningful chance to test the evidence at the current hearing.
  • Practical consequence for mature-child preference litigation: Because maturity findings can unlock “substantial weight” for a child’s preference, the evidentiary foundation for maturity must be procedurally clean. This decision will likely increase motions practice on whether and how child preferences are presented (in-court testimony, stipulations, guardian ad litem mechanisms where applicable, or consented in-chambers interviews).

IV. Complex Concepts Simplified

  • “Material change in circumstances” (parenting time): Significant new facts not known when the last parenting-time order was made. Unlike custody changes, it does not require proving the child was harmed or is doing worse.
  • “In chambers interview”: The judge talks with the child privately (typically with lawyers present) outside the parents’ presence. Under N.D.R.Ct. 8.13, it can happen only if both parents consent.
  • “Best interests factors” and the “mature child preference”: North Dakota uses statutory factors to decide what arrangement serves the child. If the court finds by clear and convincing evidence that the child is mature enough, it may give substantial weight to the child’s preference.
  • “Evidentiary record” vs. “court file”: A document may exist in the case file but still not count as evidence the judge may rely on unless it is properly received as evidence (or otherwise used with notice and an opportunity to challenge it).
  • “Cross-examination” as a due process safeguard: When an investigator’s report influences a parenting decision, each party must have a real opportunity to question the investigator about methods, sources, and conclusions.
  • “Harmless error” (N.D.R.Civ.P. 61): Not every mistake requires reversal. But reversal is warranted when the mistake likely affected substantial rights—such as inducing an essential finding (here, maturity and preference weighting).

V. Conclusion

Goetz v. Goetz, 2026 ND 53, reinforces two procedural guardrails in North Dakota parenting-time litigation: (1) an in chambers interview of a child is permissible only with both parents’ consent under N.D.R.Ct. 8.13, and courts cannot bypass that requirement by invoking N.D.R.Ev. 614; and (2) a court may not rely on a parenting investigator’s report in a later proceeding without notice and an opportunity to cross-examine the investigator at that hearing. While the Court affirmed that implementation conflict and uncertainty can constitute a material change justifying parenting-time modification, it required remand because the best-interests analysis rested on procedurally improper evidence. The decision’s broader significance lies in its insistence that even well-intentioned factfinding in family cases must remain anchored to clear procedural rules and adversarial fairness.