Limits on Delegating Parenting Time Decisions to Therapists in North Dakota:
A Commentary on Boyda v. Boyda, 2025 ND 193

I. Introduction

The North Dakota Supreme Court’s decision in Boyda v. Boyda, 2025 ND 193, is a significant addition to the State’s jurisprudence on post-divorce parenting disputes, especially in three intertwined areas:

the admissibility and impact of children’s affidavits as hearsay in parenting-time litigation;
the standards governing modifications of parenting time and the use (and cost allocation) of Rule 35 mental examinations and supervised parenting time; and
the constitutional and statutory limits on delegating judicial authority over parenting-time decisions to therapists or other third parties.

The case arises from a contentious post-divorce conflict between Sheila K. Boyda (now known as Sheila K. Tindall) and her former husband, Joseph A. Boyda, relating to their two minor children. After an original parenting plan was established at the time of their 2016 divorce, the parties returned to court in 2024 over allegations of interference with parenting time, calls for contempt sanctions, and competing requests to modify parenting time and to require a mental health examination of Joseph under N.D.R.Civ.P. 35.

On appeal, Joseph challenged several aspects of the district court’s order:

admission of the children’s affidavits as hearsay;
the finding of a material change in circumstances and the resulting reduction in his parenting time;
the requirement that he undergo and pay for a Rule 35 mental examination and supervised parenting sessions;
the structure of a “stepped” parenting plan that effectively allowed a therapist to control progression of his parenting time; and
the denial of his motion to hold Sheila in contempt.

Sheila, in turn, sought to strike portions of Joseph’s appellate brief that relied on facts outside the record, and requested sanctions.

The Supreme Court ultimately:

held that the district court abused its discretion in admitting the children’s affidavits as hearsay, but that the error was harmless in light of the children’s live testimony;
affirmed the modification reducing Joseph’s parenting time and requiring him to undergo (and pay for) a mental examination and supervised parenting sessions;
held that the district court improperly delegated its authority to a therapist by allowing the therapist to control whether and when Joseph progressed through steps of the parenting schedule; and
partially granted Sheila’s motion to strike and imposed double costs as a sanction for Joseph’s inclusion of extra-record material in his brief.

This commentary focuses especially on the Court’s clarification of the non-delegable nature of judicial authority over parenting-time decisions and its careful application of hearsay and harmless-error principles in a sensitive family-law context.

II. Summary of the Opinion

A. Factual and Procedural Background

The parties divorced in 2016 and a parenting plan was established at that time. In May 2024, Joseph filed a motion for contempt, alleging Sheila violated the parenting plan by preventing his communication and relationship with the children. Sheila responded not only by opposing contempt but also by:

moving to modify parenting time (essentially seeking to limit or restructure Joseph’s time); and
requesting that Joseph undergo a mental examination under N.D.R.Civ.P. 35 to evaluate his “anger and control issues” and the risk he allegedly posed to the children.

Sheila submitted affidavits from herself and all three children (two minors and one adult), describing Joseph’s alleged yelling, belittling, and mocking behavior toward them and toward Sheila. Joseph moved to strike the children’s affidavits as inadmissible hearsay, but the district court denied his motion and admitted the affidavits. Later that same day, however, the children also testified live before the court.

On December 26, 2024, the district court:

denied Joseph’s contempt motion;
found a material change in circumstances and reduced Joseph’s parenting time under a multi-step (“stepped”) plan;
ordered a Rule 35 mental examination of Joseph and required him to pay the costs of that examination and of supervised parenting sessions; and
implemented a stepped reunification plan heavily conditioned on therapist approval and compliance with therapist recommendations.

Joseph appealed, raising all of the above issues. Sheila separately moved to strike parts of Joseph’s appellate brief for relying on facts outside the record.

B. Holdings and Disposition

The Supreme Court held:

Children’s affidavits were inadmissible hearsay, but admission was harmless error.
The children’s affidavits were hearsay under N.D.R.Ev. 801(c) and not admitted under any applicable exception. Their admission was an abuse of discretion, but harmless because the children gave substantially similar live testimony, rendering the affidavits cumulative.
Modification of parenting time was supported by a material change in circumstances.
Based on the children’s testimony about Joseph’s behavior and their strained relationship with him, and evidence including a “Parental Alienation Happens Here” sign Joseph placed in Sheila’s yard, the district court’s findings of a material change and that modification was in the children’s best interests were not clearly erroneous.
Requiring Joseph to undergo and pay for a Rule 35 mental examination and supervised parenting sessions was within the court’s discretion.
Rule 35 is silent on cost allocation. The court reasonably required Joseph to pay given the purposes of the examination and sessions—to repair the relationship with the children and in light of Joseph’s indicated willingness to engage in therapy.
The district court improperly delegated its authority to a therapist regarding the stepped parenting plan.
By giving a therapist open-ended power to determine required recommendations, decide when Joseph progressed from step to step, and impose conditions such as public/family-only visits, the court impermissibly delegated its core judicial authority to determine parenting time.
Denial of contempt against Sheila was not an abuse of discretion.
The record supported the court’s finding that either the parties agreed to modifications or Joseph acquiesced, and that Sheila did not willfully violate the judgment.
Portions of Joseph’s appellate brief improperly relied on extra-record facts; double costs were imposed as a sanction.
The Court reiterated that it cannot consider material outside the record under N.D.R.App.P. 10, 28 and 30; Sheila’s motion to strike was granted in part, and Joseph was assessed double costs.
On remand, any successor judge must comply with N.D.R.Civ.P. 63.
Because the original judge is a retired surrogate, any new judge assigned must certify familiarity with the record and compliance with Rule 63.

Disposition: The judgment was affirmed in part, reversed in part, and remanded. The reversal is confined to the improper delegation of authority to the therapist; the remainder of the district court’s order stands.

III. Detailed Analysis

A. Evidentiary Error and Harmless Error: Children’s Affidavits as Hearsay

1. Hearsay and affidavits

Under N.D.R.Ev. 801(c), hearsay is:

a statement made by a declarant outside the current trial or hearing; and
offered to prove the truth of the matter asserted in the statement.

The Court reaffirms, citing Davis v. Romanyshyn, 2025 ND 18, ¶ 9, that affidavits are classic hearsay when offered to prove the truth of what they assert and, absent a valid exception, are inadmissible in evidentiary hearings:

"Davis's petition and Romanyshyn's affidavit, unless subject to an exception, are inadmissible hearsay statements under N.D.R.Ev. 801(c)."

Here, the children’s affidavits were:

signed statements, prepared outside court;
offered by Sheila to prove that the events described (yelling, mocking, fear of Joseph) actually occurred; and thus
hearsay with no clearly applicable exception invoked below.

Accordingly, the Supreme Court held that admitting the affidavits was a misapplication of law and therefore an abuse of discretion (¶ 8).

2. Residual exception and issue preservation

Sheila attempted on appeal to rescue admissibility by invoking N.D.R.Ev. 807, the residual hearsay exception. The Court refused to consider this theory because:

Sheila did not raise Rule 807 at the district court; and
the district court did not rely on it when admitting the affidavits.

Citing Brouillet v. Brouillet, 2016 ND 40, ¶ 32, the Court reiterated the principle of issue preservation:

"[A] touchstone for an effective appeal of an issue requires the issue to be properly raised in the district court so that court can intelligently rule on the issue."

And under N.D.R.Ev. 103 (referenced via Brouillet), parties must state specific grounds for evidentiary rulings to preserve them. Because the residual exception issue was not presented below, it was waived on appeal (¶ 7).

3. Harmless error analysis

The Court then applied N.D.R.Civ.P. 61 (harmless error rule) and its own precedents (Rentz v. BNSF Ry., 2020 ND 254; Johnson v. Bushkol Constr., 2015 ND 268) to determine whether admission of the affidavits affected Joseph’s “substantial rights.”

Key factors:

The children later provided live testimony. The district court found that this testimony was similar to what was in their affidavits (¶ 9).
The affidavits thus were cumulative of admissible live testimony. Under State v. Henderson, 2024 ND 42, ¶ 25, cumulative evidence is generally not prejudicial where other properly admitted evidence covers the same ground.
The district court explicitly recognized that some affidavit statements may not be “totally accurate,” but viewed them generally as illustrating the nature of the relationship, not as linchpins whose exclusion would alter the outcome.

Because “the court received sufficient evidence through the children's live testimony” (¶ 9), the Supreme Court concluded:

the error did not affect Joseph’s substantial rights;
the evidentiary ruling, while erroneous, was harmless; and
no reversal of the parenting modification was warranted on this ground.

4. Doctrinal significance

Two doctrinal points are reinforced:

Affidavits are not substantive evidence at evidentiary hearings unless a hearsay exception applies. This is especially important in family-law matters where affidavits are routinely used at the motion stage, but evidentiary hearings require adherence to the Rules of Evidence.
Harmless error protects judgments from reversal where improperly admitted evidence is cumulative of proper evidence. Even in highly sensitive parenting cases, technical evidentiary errors will not automatically lead to reversal if the same facts are established by admissible testimony.

B. Modification of Parenting Time: Material Change and Best Interests

1. Statutory and case-law framework

Under N.D.C.C. § 14-05-22 and Williams v. Williams, 2021 ND 134, ¶ 3, a party seeking to modify parenting time must show:

a material change of circumstances since the prior parenting order; and
that modification is in the best interests of the child.

A “material change” is defined in Williams as “important new facts that were unknown at the time of the … initial parenting time order” (¶ 11). The Court further cites Konkel v. Amb, 2020 ND 17, ¶ 7, noting that certain developments can constitute a material change, including:

"a parenting time schedule that causes conflict between the parents and behavior problems in the child."

Findings on parenting-time modification are reviewed under a clearly erroneous standard, per Fleck v. Fleck, 2023 ND 129, ¶ 13. A finding is clearly erroneous if:

induced by an erroneous view of the law;
without evidentiary support; or
leaves the reviewing court with a “definite and firm conviction” a mistake has been made.

2. Evidence of material change

The district court relied on several key pieces of evidence (¶¶ 12–13):

Children’s testimony that Joseph:
- frequently belittled them and Sheila;
- was often angry and would throw items; and
- made them feel unsafe.
A yard sign Joseph created and placed in Sheila’s yard stating: “Parental Alienation Happens Here.”
The children’s documented reluctance to communicate with Joseph.
The court’s finding that the relationship between Joseph and the children was “unhealthy, strained, and broken.”

The court concluded that:

the existing parenting plan was no longer serving the children’s best interests because of the deteriorated relationship; and
forcing parenting time under the old plan would likely exacerbate the children’s distress.

Such a circumstance—an existing plan that is itself causing conflict and contributing to relationship breakdown—is directly within the type of change recognized as material in Konkel.

3. Appellate review

The Supreme Court carefully adhered to the clearly erroneous standard. It found:

ample testimonial support in the record for the district court’s findings;
no indication of misapplied legal standards; and
no basis for a “definite and firm conviction” that a mistake was made.

Accordingly, the Court affirmed the determination that a material change of circumstances occurred and that modifying parenting time was in the children’s best interests (¶ 13).

4. Practical implications

This aspect of Boyda:

confirms that an increasingly dysfunctional parent-child relationship, demonstrably linked to the existing parenting schedule and parental behavior, can satisfy the “material change” requirement;
signals continued deference to trial courts on fact-heavy parenting assessments when properly supported by testimony; and
demonstrates that judicial concern for the children’s emotional safety—rather than simply preserving maximum contact—is legitimate grounds for curtailing or restructuring parenting time.

C. Rule 35 Mental Examination and Cost Allocation

1. Rule 35 standard and scope of discretion

N.D.R.Civ.P. 35 authorizes the court to order a party to undergo a physical or mental examination when that person's condition is in controversy and good cause is shown. The Court reiterates long-standing precedent that:

a trial court has wide discretion in deciding whether to order such an examination, citing Guskjolen v. Guskjolen, 391 N.W.2d 639, 641 (N.D. 1986).

Significantly, Rule 35 is silent on who must pay the costs of the exam. Citing Lucke v. Lucke, 300 N.W.2d 231, 235 (N.D. 1980), the Court notes:

"There may very well be cases in which the circumstances warrant assessing the costs against the moving party. This is not one that does."

Thus, cost allocation is also an area of judicial discretion, assessed case-by-case.

2. Application to Joseph’s case

The district court ordered:

Joseph to undergo a mental examination under Rule 35; and
Joseph to pay:
- the costs of that examination; and
- the costs of supervised parenting sessions.

The court’s stated objective was to repair the relationship between Joseph and his children and to ensure the children’s welfare during that process (¶ 16). The order also:

recognized Joseph’s willingness to undergo an examination in line with the children’s wishes; and
referenced Joseph’s own understanding that counseling or therapy might be necessary.

Given this record:

the purposes of the exam and supervision were remedial and child-focused, not punitive;
Joseph’s own statements supported the notion that therapeutic intervention was appropriate; and
there was no indication that placing costs on Joseph was arbitrary or disconnected from his role in the conflict.

The Supreme Court therefore held that the district court did not abuse its discretion in:

ordering the Rule 35 mental examination; or
assigning Joseph the costs of the examination and supervised parenting sessions (¶ 16).

3. Doctrinal and practical significance

While not setting a new bright-line rule, Boyda:

confirms that courts may place the financial burden of mental health evaluations and supervised visitation on the parent whose conduct is in question, so long as the allocation is grounded in the record and reasonable; and
emphasizes that Rule 35 and supervision orders, when properly motivated by children’s welfare rather than punishment, will receive deference on appeal.

D. Non-Delegable Judicial Authority and Therapist-Controlled Parenting Plans

1. Legal framework: parenting plans and non-delegation

Under N.D.C.C. § 14-09-30:

"If the parents are unable to agree on a parenting plan, the court shall issue a parenting plan considering the best interests of the child."

The Supreme Court has consistently held that determinations of custody and parenting time are judicial functions that cannot be delegated:

Paulson v. Paulson, 2005 ND 72, ¶ 21:
"The district court cannot 'delegate to anyone the power to decide questions of child custody.'"
Marquette v. Marquette, 2006 ND 154, ¶ 9: improper to allow one parent to determine the manner and timing of visitation.

However, the Court has recognized that third parties, including therapists, may have a role in the process, so long as:

their function is advisory or evaluative; and
the court retains ultimate, reviewable decision-making authority.

In Wolt v. Wolt, 2010 ND 26, ¶¶ 39–40, the Court upheld an order that:

limited visitation and required therapy; and
allowed counselors to make recommendations for more or less restrictive visitation, with the court to consider a new schedule.

The key in Wolt was that:

the therapist’s role was recommendatory, not controlling; and
the order did not place additional limits on the parent’s access to the court to seek modification.

2. The stepped parenting plan in Boyda

The district court adopted a three-step reunification/parenting-time plan. Crucial elements appear in paragraphs 34–37 (quoted at ¶ 20):

Paragraph 34:
- Joseph must exercise three hours per week for 120 days at a supervised exchange location (Rainbow Bridge), with limited exceptions.
- Missed time may extend the 120-day period.
- “Joseph must follow all therapist or counselor recommendations.”
Paragraph 35:
- Joseph may begin Step 2 only:
  - “[u]pon successful completion of the recommendations and with the approval of the children’s therapists.”
Paragraph 36:
- Step 2 grants expanded weekly and weekend parenting time.
- Whether this time must be in public or with family is conditioned on therapist requirements, “if the therapist/counselor believes that such restrictions would be beneficial to reunification.”
Paragraph 37:
- Joseph must continue to follow all therapist or counselor recommendations.
- “The therapists will determine when Step 2 is complete.”
- Joseph may only begin Step 3 “upon successful completion of the recommendations and with the approval of the family therapist.”

In summary, the order:

requires Joseph to comply with all therapist recommendations, without any defined scope or limits;
conditions progress to Step 2 and Step 3 entirely on therapist approval and completion of therapist-specified “recommendations;” and
permits therapists to decide whether parenting time must occur in public or with family, with no clear judicial criteria.

3. Why this is improper delegation

The Supreme Court carefully distinguishes this plan from the permissible structure in Wolt and aligns it with the impermissible delegations seen in Paulson and Marquette (¶¶ 21–23).

Key concerns:

Unlimited therapist authority over conditions and progression.
The order gives therapists “extensive decision-making authority” (¶ 21). Joseph “must follow all therapist or counselor recommendations,” but:
- no guidance is provided to limit what those recommendations may be;
- therapists can effectively set any conditions they choose; and
- non-compliance can stall or prevent progression to the next step.
Control over when steps are complete.
The therapists “determine when Step 2 is complete” and must approve the move to each subsequent step. The district court provides no criteria for what constitutes “completion” beyond therapist satisfaction. This is analogous to the “carte blanche” authority disapproved in Paulson, 2005 ND 72, ¶ 21.
Lack of judicially set criteria.
The court itself does not articulate specific benchmarks (e.g., number of sessions attended, assessed risk factors, measures of children’s comfort) that define completion of each step. Instead, it allows therapists both to:
- create the criteria; and
- decide when those criteria are met.
Departure from Wolt model.
In Wolt, therapists evaluated progress and made recommendations to the court, which retained authority to modify the schedule. Here, by contrast, the therapists’ decisions themselves control the parenting-time schedule without required court review or an automatic judicial check.

As the Court summarizes (¶ 22):

"Disparately here, the district court's order fully delegates to the therapist what recommendations can be imposed on Joseph Boyda, and unilaterally permits the therapist to prevent Joseph Boyda from moving to the next step if the therapist's recommendations are not followed."

And (¶ 23):

"For each delegation, the district court did not provide the therapist with criteria for completion of each step. Rather, the therapist was permitted to determine what criteria applied during each step, and to then decide whether and when the criteria for each step was completed. In this regard, the delegation here was like the one we disapproved in Paulson where the provider was permitted 'to set the visitation schedule, carte blanche.'"

Therefore, the Court holds that the district court improperly delegated its authority and reverses the portion of the order governing the therapist-controlled stepped plan, remanding for “re-creation of a court-supervised plan” (¶ 23).

4. Clarified rule / precedent

Boyda refines North Dakota’s non-delegation principle in parenting cases:

Judges may incorporate therapeutic processes and require parties to participate in therapy or counseling.
Therapists may:
- assess progress;
- make recommendations; and
- advise the court.
But therapists may not be granted open-ended authority to:
- define the criteria for when parenting time expands or contracts;
- decide unilaterally when those criteria are met; or
- impose unreviewable, substantive conditions (such as mandatory public-only visits) that effectively control parenting time.

Instead:

the court must set the parameters—including timeframes, conditions, and objective or at least discernible criteria for progression; and
any role for therapists in altering parenting time must be structured as recommendatory, subject to judicial oversight and the parties’ right to seek court review.

This is the central doctrinal contribution of Boyda: a clear warning against therapist-driven, effectively self-amending parenting plans that displace the court’s statutory responsibility to “issue a parenting plan” under N.D.C.C. § 14-09-30.

E. Contempt and Deference to the Trial Court

1. Standard of review

Citing Matter of Emelia Hirsch, 2025 ND 79, ¶ 5, the Court emphasizes that its review of contempt rulings is “very limited,” because:

the district court has broad discretion in contempt determinations; and
appellate review focuses on whether the court acted arbitrarily, unreasonably, or misapplied the law (again referencing Holm v. Holm, 2025 ND 100, ¶ 7).

2. Application

Joseph argued that Sheila should be held in contempt for:

preventing communication;
interfering with his relationship with the children; and
violating the parenting plan.

The district court, however, found (¶ 26):

the parties either agreed to modifications of the schedule, or Joseph acquiesced in practice; and
Sheila encouraged the children’s involvement in Joseph’s parenting time, but the children themselves refused.

These findings, supported by the record, did not reflect willful disobedience by Sheila. The Supreme Court therefore saw no abuse of discretion and affirmed the denial of contempt.

3. Implications

Boyda reinforces:

the high threshold for appellate intervention in contempt decisions; and
the principle that where children independently refuse parenting time, and the other parent has made reasonable efforts to comply, contempt is typically inappropriate.

F. Appellate Procedure: Record Limitations, Motions to Strike, and Double Costs

1. The appellate record and extra-record material

Under N.D.R.App.P. 10, the record on appeal comprises:

documents and exhibits filed in the district court;
transcripts; and
a certification by the clerk identifying what constitutes the record.

Rules 28 and 30 require citations to the record in briefs. The Court, citing Discover Bank v. Bolinske, 2020 ND 228, ¶¶ 5–6, and other cases (Energy Transfer LP v. N.D. Priv. Investigative & Sec. Bd., 2022 ND 84, ¶ 29; Schmidt v. Schmidt, 2003 ND 55; Hurt v. Freeland, 1997 ND 194), reiterates that it cannot consider items outside the record (¶ 27).

Joseph’s brief:

included many factual assertions without citation; and
introduced entirely new factual claims, such as:
- costs he incurred;
- parents’ financial positions; and
- a child’s educational status.

Some of these referred to events occurring after the September 20, 2024 hearing and were thus not in the record.

2. Motion to strike and sanction

Sheila moved to strike 20 paragraphs and other portions of Joseph’s brief. The Court found her request “over inclusive” because some paragraphs did include proper record citations (¶ 28). Thus:

the Court denied the motion insofar as it sought to strike entire paragraphs that contained proper references; but
granted the motion to the extent Joseph had included facts outside the record.

As a remedy, the Court:

limited its consideration on appeal strictly to facts in the district court record; and
as a sanction, imposed double costs against Joseph (¶ 28).

3. Significance

This portion of Boyda underscores two points:

Appellants must scrupulously confine their factual statements to the record and include citations. Attempts to “augment” the record through briefing are prohibited.
The Court is prepared to respond to noncompliance not just with admonitions, but with tangible sanctions—here, double costs—especially when a party’s briefing materially violates the record rules.

G. Successor Judges and Rule 63

Because the original district judge had retired and was serving as a surrogate, the Court addressed the procedural requirements on remand. Citing In re Estate of Bartelson, 2015 ND 147, ¶ 20, and Smestad v. Harris, 2011 ND 91, ¶ 15, the Court explains that any new judge assigned to the case must comply with N.D.R.Civ.P. 63:

"If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden."

This ensures continuity and fairness in long-running or complex family cases when judicial reassignment occurs.

IV. Complex Concepts Simplified

1. Hearsay and Affidavits

Hearsay is essentially “second-hand” evidence: statements made outside of court, brought into court to prove they’re true. Affidavits (written, sworn statements) are a type of hearsay when used at an evidentiary hearing to prove the facts they describe. Unless an exception applies (like certain business records or excited utterances), such affidavits generally cannot replace live testimony.

2. Harmless Error

Not every mistake at trial leads to reversal. An error is “harmless” if it doesn’t reasonably affect the outcome. If another source of evidence (like live testimony) already proves the same point, admitting improper evidence (like a hearsay affidavit) may be considered harmless.

3. Material Change of Circumstances

A “material change” means that something important has changed since the last court order—something that was not known and could not reasonably have been known at that time—and that significantly affects the children or the functioning of the parenting plan. It is more than everyday ups and downs; it must be significant enough to justify reopening and changing the existing parenting arrangement.

4. Best Interests of the Child

In custody and parenting-time cases, the primary focus is always the children’s well-being. Courts consider factors such as the children’s emotional and physical needs, each parent’s ability to meet those needs, the stability of each home, the children’s relationships with each parent, and the presence of conflict or harmful behavior.

5. Rule 35 Mental Examination

Rule 35 allows a court to order a mental (or physical) examination of a party if that person’s mental (or physical) condition is legally relevant and if there is good reason to require the exam. It is often used in family cases where a parent’s mental health is closely tied to the safety or welfare of the children.

6. Improper Delegation of Judicial Authority

Only judges can make final decisions about custody and parenting time. Courts can ask therapists and other professionals to evaluate, treat, and recommend, but cannot hand over the power to decide “how much time” or “when” a parent may see a child. If a therapist is given open-ended power to control whether a parent moves to more or less time with a child, that crosses the line into improper delegation.

7. Contempt of Court

Contempt is a tool used when someone willfully disobeys a court order. In parenting cases, a parent might be held in contempt for deliberately denying the other parent court-ordered parenting time. But if a parent has made reasonable efforts to comply and the children themselves refuse, or if the parties have informally modified the schedule, a contempt finding is less likely.

8. Appellate Record and Double Costs

On appeal, the Supreme Court can only consider what is in the official record from the trial court—pleadings, exhibits, transcripts, etc. Parties cannot add new facts or documents through their briefs. If they try to do so, the Court can ignore the new material and, in serious cases, penalize them by requiring them to pay more of the costs of the appeal, as it did here by imposing double costs.

V. Impact and Broader Significance

1. For family-law practitioners and trial courts

Structuring therapeutic, stepped parenting plans: Courts may and should involve therapists in reunification and parenting-time disputes; however, Boyda makes clear that:
- the court must define step criteria and timelines; and
- therapists should inform and recommend, not control.
Any future plan allowing a therapist to unilaterally decide whether and when parenting time expands is now on uncertain ground.
Evidence management in custody hearings: Practitioners should not rely on affidavits as substitute evidence at hearings. Children’s statements should be presented through live testimony (with appropriate protections) or under clearly established exceptions.
Use of Rule 35: The case reaffirms wide discretion for trial courts to order examinations and assign costs, so long as they articulate child-centered reasons and ground them in the record.

2. For appellate advocacy

Issue preservation: Arguments based on evidentiary exceptions (like Rule 807) must be raised at the trial level to be considered on appeal.
Record integrity: Boyda reinforces that including extra-record facts in appellate briefs is not just improper but sanctionable. This serves as a cautionary tale for litigants and counsel.

3. For parents in high-conflict custody matters

Behavior toward children matters deeply. The Court affirmed a significant reduction in parenting time based largely on the children’s subjective experience of fear, belittlement, and emotional harm, corroborated by Joseph’s own conduct (e.g., the “Parental Alienation Happens Here” sign).
Therapy is remedial, not punitive. The Court’s endorsement of therapy and supervised parenting time—using cost allocation and mental health evaluations as tools—signals that such measures are viewed as rehabilitation-focused rather than as punishments.
Courts, not therapists, make final decisions. While parents and children may place trust in their therapists, and therapists may guide the process, final authority over parenting time remains with the judiciary.

VI. Conclusion

Boyda v. Boyda, 2025 ND 193, is an important decision in North Dakota family law, particularly for its explicit clarification of the boundary between judicial authority and the role of therapists in parenting-time disputes. While affirming most of the district court’s decisions—including the modification of parenting time, the Rule 35 mental examination, and the assignment of costs—the Supreme Court drew a firm line against giving therapists open-ended, “carte blanche” control over the progression of a parent’s contact with children.

The opinion also reaffirms key procedural and evidentiary principles:

affidavits are hearsay at evidentiary hearings unless a valid exception is invoked, though cumulative errors can be harmless;
a materially deteriorated parent-child relationship, linked to an existing parenting schedule and parental conduct, can justify modifying parenting time;
courts have wide discretion in ordering and funding mental examinations and supervised parenting time, especially when aimed at repairing relationships and safeguarding children; and
appellate review is strictly confined to the record, and violations of that rule can draw sanctions such as double costs.

In the broader legal landscape, Boyda stands as a clear precedent that, while therapeutic expertise is indispensable in addressing the complex emotional dynamics of post-divorce parenting, the ultimate responsibility for structuring and supervising parenting time remains a judicial function that cannot be outsourced—even to well-intentioned professionals. The decision provides valuable guidance for judges, lawyers, therapists, and parents alike in navigating the difficult intersection of law, psychology, and family relationships.

Limits on Delegating Parenting Time Decisions to Therapists in North Dakota: A Commentary on Boyda v. Boyda, 2025 ND 193