Graduated Parenting Plans May Not Condition Out-of-State Parenting Time on Undefined “Substantial Progress” Determinations by an Unnamed Professional Without Judicial Oversight

I. Introduction

In Rustan v. Ball, 2026 ND 143, the North Dakota Supreme Court reviewed a Stark County district court parenting plan governing a minor child, C.F.B. (born 2016), who has extensive special needs (including Level 3 Autism Spectrum Disorder, ADHD, global developmental delay, and related safety and communication impairments). The parties agreed the mother, Alexis Rustan, should have primary residential responsibility, but disputed whether the father, Tyler A. Ball (pro se, residing in Washington), should receive supervised or unsupervised parenting time and how (and by whom) future increases in parenting time should be determined.

The appeal presented two core issues: (1) whether the district court made sufficient findings to support restrictions (supervision) and related provisions (decision-making, passport authority, expense allocation); and (2) whether a “graduated” multi-phase plan unlawfully delegated to nonjudicial actors the power to decide advancement—particularly where later phases depended on a professional’s recommendation that the child had made “substantial progress,” without defined standards or judicial review. A secondary issue concerned attorney’s fees awarded after denial of a stay, and procedural rulings denying post-judgment motions for lack of notice.

II. Summary of the Opinion

The Supreme Court affirmed in part, reversed in part, and remanded.

  • Affirmed the supervised parenting structure and related provisions (primary decision-making authority, passport authority, equal sharing of uncovered medical/therapeutic expenses), concluding the factual basis was sufficiently discernible from the findings.
  • Affirmed Phase 1 and Phase 2 progression conditions (medical clearance and professional concurrence as to father’s skills), holding they were objective and tied to the court’s findings.
  • Reversed Phase 3 and Phase 4 advancement provisions because they conditioned out-of-state summer parenting time on undefined “substantial progress” as “recommended by a professional,” with no standards, no identified professional, and no mechanism for judicial review—constituting improper delegation.
  • Affirmed denial of the father’s N.D.R.Civ.P. 52(b) and clarification motions based on lack of proper notice, because the father did not challenge that ground on appeal.
  • Reversed a $500 attorney-fee award entered upon denial of a stay, holding “without merit” is not the same as “frivolous,” and frivolousness cannot be inferred from that language alone.
  • Denied the mother’s request for appellate attorney’s fees under N.D.R.App.P. 38 because the appeal was not frivolous, particularly given the partial reversal.

III. Analysis

A. Precedents Cited

1. Standards of Review and Required Findings for Restrictions

  • Taylor v. Taylor, 2022 ND 39, ¶ 8, 970 N.W.2d 209: The Court reiterated that parenting-time determinations are factual findings reviewed for clear error and framed the “clearly erroneous” lens through which it examined the district court’s restrictions and rationales.
  • Vetter v. Vetter, 2026 ND 36, ¶ 10, 31 N.W.3d 662 and Taylor v. Taylor, 2022 ND 39, ¶ 16: These decisions reinforced that parenting-time restrictions must be supported by findings showing, by a preponderance of the evidence, unrestricted parenting time is likely to endanger the child’s physical or emotional health under N.D.C.C. § 14-05-22(2).
  • Marquette v. Marquette, 2006 ND 154, ¶ 11, 719 N.W.2d 321: The Court relied on this authority for the requirement that when restrictions are imposed, the district court must articulate findings supporting the limitation.
  • In re Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351: Central to the Court’s affirmance on the “insufficient findings” argument, Griffey supplies the pragmatic principle that reasons may be “fairly discernible” by inference, and findings need not follow a rigid verbal formula so long as the factual basis is disclosed with sufficient specificity.

2. Improper Delegation in Graduated/Stepped Parenting Plans

  • Vetter v. Vetter, 2026 ND 36, ¶ 13: The Court reiterated the general rule that a district court cannot delegate to others the power to decide residential responsibility or related parenting-time issues.
  • Boyda v. Boyda, 2025 ND 193, ¶¶ 21, 23, 27 N.W.3d 706: Boyda provided the controlling framework to distinguish permissible use of professional input from impermissible transfer of decisional authority. The Supreme Court treated Boyda as the cautionary template: where the plan effectively gives a therapist singular authority to determine criteria and whether progress is sufficient, it becomes improper delegation.
  • Wolt v. Wolt, 2010 ND 26, ¶¶ 39-40, 778 N.W.2d 786: Wolt anchored the permissible alternative—professionals may make recommendations, but the court must retain the final decision. Rustan uses Wolt to underscore that judicial retention of authority (including review mechanisms) is the line between consultation and delegation.

3. Post-Judgment Motions and Appellate Abandonment

  • Buchholz v. Overboe, 2022 ND 203, ¶ 36, 982 N.W.2d 275: The Court applied the “abuse of discretion” standard to the denial of a N.D.R.Civ.P. 52(b) motion.
  • Somerset Ct., LLC v. Burgum, 2021 ND 58, ¶¶ 12-14, 956 N.W.2d 392 and In re J.J.T., 2018 ND 165, ¶ 29, 915 N.W.2d 106: These cases supplied the abandonment doctrine: when a district court offers alternative grounds and the appellant fails to challenge one ground, the unchallenged ground stands, and the issue is effectively abandoned.

4. Attorney’s Fees, “Without Merit,” and Frivolousness

  • Walstad v. Walstad, 2013 ND 176, ¶ 29, 837 N.W.2d 911: Provided the abuse-of-discretion standard for reviewing attorney’s fee awards.
  • Williams v. State, 405 N.W.2d 615, 624 (N.D. 1987): The key distinction: a motion being “without merit” is not equivalent to being “frivolous.” Rustan relies on Williams to reject inferring frivolousness from the district court’s phrasing.
  • Healy v. Healy, 397 N.W.2d 71, 76 (N.D. 1986): The Court used Healy’s definition of frivolous appeal to deny appellate fees under N.D.R.App.P. 38, especially given the father’s partial success on the delegation issue.

B. Legal Reasoning

1. Why the Supervised Parenting Structure Was Affirmed

The father argued the district court failed to make sufficiently specific findings to justify supervised parenting time and related constraints (medical certification before unsupervised time, primary decision-making authority for the mother, passport authority, and equal division of uncovered medical/therapy expenses). Applying N.D.C.C. § 14-05-22(2) and the cases requiring findings supporting restrictions, the Supreme Court held the factual basis was adequately disclosed when the findings were read together.

The Court emphasized the district court’s findings that C.F.B. required effectively “24/7 hands-on supervision,” faced an elopement risk, was susceptible to self-harm during meltdowns, and could not communicate needs without visual aids. Rustan had been providing specialized supports and therapies; Ball had been largely absent and minimized the child’s limitations; and the district court found his testimony untrustworthy. Under In re Griffey, those findings allowed the Court to deduce the rationale for supervision and associated provisions without demanding a “rigid verbal formula.”

Notably, the Court also treated the “medical clearance” condition as a logical response to the record: Ball asserted significant disabilities but was barred from presenting medical evidence as a discovery sanction; a medical assessment was therefore a rational, child-safety-linked prerequisite rather than an arbitrary hurdle.

2. Delegation: Why Phases 1–2 Were Upheld but Phases 3–4 Were Reversed

The Court drew a sharp distinction between (a) objective, court-defined prerequisites tied to explicit factual findings, and (b) open-ended conditions that place decisive authority in a third party.

  • Phases 1–2 (Upheld): The conditions—(1) medical clearance of Ball’s physical capability and (2) concurrence by a professional familiar with the child’s care that Ball has the training/skills—were characterized as “objective in character” and anchored in the district court’s specific findings about the child’s intensive needs and Ball’s failure to demonstrate capability. The district court identified what must be demonstrated; it did not ask a professional to invent the criteria.
  • Phases 3–4 (Reversed): These phases permitted out-of-state summer parenting time only if the child made “substantial progress” in communication, safety awareness, independent skills, and self-regulation “as recommended by a professional who is familiar with the minor child's current situation.” The Supreme Court found multiple delegation defects: no defined threshold for “substantial progress,” no timeline, no identified professional, and—most critically— no retained mechanism for judicial review of the recommendation. That structure made an unnamed professional’s judgment determinative, paralleling the improper delegation condemned in Boyda v. Boyda.

The remedy is also doctrinally important: the Court did not forbid professional input; it required that the district court either (1) establish objective criteria for advancement or (2) provide a mechanism for judicial review of any professional recommendations—consistent with Wolt v. Wolt, which permits recommendations so long as the court retains ultimate authority.

3. Post-Judgment Motions: Notice as a Dispositive Ground

Ball challenged denial of his N.D.R.Civ.P. 52(b) and clarification motions, but the district court denied them because they “lack proper notice.” On appeal, Ball did not contest that lack-of-notice ground. Applying Somerset Ct., LLC v. Burgum and In re J.J.T., the Supreme Court treated the issue as abandoned and affirmed. Practically, the ruling highlights that procedural compliance (and addressing every independent ground on appeal) can be outcome-determinative.

4. Attorney’s Fees: “Without Merit” Does Not Equal “Frivolous”

The district court awarded $500 in attorney’s fees after denying Ball’s motion to stay the passport provision, stating the stay motion “lacked merit.” The Supreme Court reversed: under Williams v. State, a finding of “without merit” is not equivalent to a finding of “frivolous,” and the appellate court will not infer frivolousness from that wording alone. Without an express finding supporting a fee-shifting basis, the award was an abuse of discretion under Walstad v. Walstad.

C. Impact

  • Drafting graduated parenting plans: Rustan concretely signals that stepped plans must either specify measurable, objective advancement criteria or preserve judicial control through review procedures. Courts and practitioners should treat undefined terms like “substantial progress” as red flags unless operationalized (e.g., specified metrics, sources, timelines, and a review/hearing pathway).
  • Use of professionals: The opinion endorses professional evaluation as evidence (and as a trigger for returning to court), but not as a substitute for judicial decision-making—especially when the professional is unnamed or the criteria are amorphous.
  • Fee awards tied to frivolousness: Trial courts must make explicit findings if fees are imposed as a sanction-like response to frivolous filings; “lacks merit” language is insufficient. This may constrain fee awards in fast-moving post-judgment custody disputes where courts sometimes use fees to discourage repeated motions.
  • Appellate practice: The abandonment holding reinforces that appellants must challenge each independent ground for a ruling, particularly procedural grounds (like notice), or the appeal will fail regardless of the merits.

IV. Complex Concepts Simplified

  • “Clearly erroneous” review: The Supreme Court generally defers to the trial judge’s factual findings unless they lack evidentiary support, rest on legal error, or leave the Court firmly convinced a mistake occurred.
  • Restriction on parenting time (N.D.C.C. § 14-05-22(2)): A court may restrict parenting time (e.g., supervision) only if unrestricted time is likely to endanger the child’s physical or emotional health, proven by a “preponderance of the evidence” (more likely than not).
  • “Findings must be articulated” vs. “fairly discernible”: Courts must explain restrictions, but they do not need magic words; if the reasoning can be reliably inferred from the findings as a whole, the explanation may be sufficient (the In re Griffey principle).
  • Improper delegation: A court cannot let a therapist/doctor decide whether parenting time increases. Professionals may advise, but the court must set the governing standards and keep final authority—either by writing objective criteria into the plan or by requiring return to court for review.
  • “Without merit” vs. “frivolous”: Losing is not the same as frivolous. “Frivolous” implies groundlessness or bad faith; courts should not award fees as if a filing were frivolous unless they actually find it was.

V. Conclusion

Rustan v. Ball strengthens two practical guardrails in North Dakota family law. First, it confirms that in cases involving severe special-needs caregiving and safety risks, supervised parenting time and related controls may be upheld where the district court’s factual rationale is sufficiently clear—even if not recited in formulaic detail—so long as the basis is “fairly discernible” from the findings. Second, and more precedentially, it limits the design of graduated parenting plans: courts may not condition later-stage, higher-risk parenting time (here, out-of-state summer time) on an undefined “substantial progress” determination left to an unnamed professional without objective standards or judicial review. The decision preserves the court’s nondelegable duty to decide parenting-time disputes while still allowing professionals to inform those decisions through evidence and recommendations.