Mandating Reasoned and Specific Findings in Child Custody, Parenting Time, and Equitable Property Distribution

Introduction

The Supreme Court of North Dakota’s decision in Shively v. Shively, 2025 ND 69, delivers a clear message to trial courts: awards of primary residential responsibility, parenting time, and equitable property distribution must rest on findings stated with sufficient factual specificity. In this appeal from the bench-trial divorce judgment entered by the District Court of Benson County, Kyle Shively challenged (1) the award of primary residential responsibility to his wife, Sarah; (2) the omission of extended summer parenting time; and (3) the disposition of the marital home—a family farmstead—without adequate explanation. The Supreme Court reversed and remanded on all three grounds. This commentary examines the background, summarizes the ruling, analyzes the precedents and reasoning, highlights the practical and doctrinal impact, and demystifies key legal concepts.

Summary of the Judgment

In a unanimous opinion by Justice Tufte, the Supreme Court held that:

The district court’s custody award lacked sufficiently detailed findings under the “best interest” factors set out in NDCC § 14-09-06.2. Although the court recited that factors (a) through (l) were either neutral or inapplicable, it ultimately concluded factor (d) favored Sarah without reconciling that with its earlier neutrality finding.
The court failed to address whether equal residential responsibility was in the children’s best interests, despite Kyle’s request and evidence of effective parental communication.
No reasoning was given for denying summer parenting time, contrary to the presumption in favor of non-custodial access during the summer months.
The property distribution—specifically the marital home—was awarded to Sarah without any explanation of how the Ruff-Fischer guidelines or the origin and sentimental value of the farmstead were weighed.

Accordingly, the Supreme Court reversed the judgment and remanded for reconsideration with reasoned, specific findings on custody, parenting time, and property distribution.

Analysis

Precedents Cited

Edison v. Edison, 2023 ND 141: Affirms that a custody decision must be supported by non-erroneous, specific findings.
Hillestad v. Small, 2023 ND 195: Clarifies “clearly erroneous” review for parenting time and the requirement to consider joint custody when parents communicate effectively.
Walden v. Walden, 2025 ND 32: Custody and property awards are findings of fact subject to clear-error review.
Armitage v. Armitage, 2024 ND 97 & Dimmler v. Dimmler, 2024 ND 20: Emphasize that findings must show the factual basis of decisions with sufficient specificity.
Marsden v. Koop, 2010 ND 196: Residence in the marital home does not alone bestow custodial preference.
P.A. v. A.H.O., 2008 ND 194: Joint custody must be affirmatively considered where in a child’s best interest.
Deyle v. Deyle, 2012 ND 248 & Kershaw v. Finnson, 2022 ND 165: Stress the presumption in favor of extended summer parenting time for fit non-custodial parents.
Langwald v. Langwald, 2016 ND 81; Fugere v. Fugere, 2015 ND 174; Feist v. Feist, 2015 ND 98: Outline marital property valuation and the inclusion of separately acquired property.
Lee v. Lee, 2019 ND 142: Introduces Ruff-Fischer guidelines for equitable distribution, including the catch-all factor for “other matters as may be material.”
Gaulrapp v. Gaulrapp, 1994 ND & Hogan v. Hogan, 2003 ND 105: Discuss the origin of property and the misconception that inherited property must be irrevocably awarded to the heir.
Young v. Young, 1998 ND 83: Reiterates that property brought into a marriage or inherited need not be set aside to its original owner.
Olson v. Olson, 1989 ND: Recognizes that inherited property should, where fairly possible, remain with the heir.
Brew v. Brew, 2017 ND 242: Exemplifies adequate explanation of property distribution.

Legal Reasoning

The Court applied well-established standards of appellate review: factual findings are overturned only if clearly erroneous or legally insufficient, and the district court must articulate its factual basis with specificity. In child custody, NDCC § 14-09-06.2 enumerates best interest factors (a)–(m), but the district court merely summarily categorized them as neutral before concluding one factor favored Sarah. This internal inconsistency violated the requirement from Dimmler and Armitage that findings must show how evidence supports each conclusion. Likewise, it failed to assess equal residential responsibility despite acknowledging the parents’ ability to cooperate, contravening Hillestad and P.A. v. A.H.O..

On parenting time, the Court noted the strong presumption favoring extended summer visitation for a fit non-custodial parent (Deyle, Kershaw) and remanded for a reasoned denial or grant of such time.

Regarding property distribution, equity demands application of the Ruff-Fischer guidelines. Although the district court described the farmstead’s sentimental history, it never explained whether sentimental value or the property’s origin tipped the scales. By simply listing assets, the court failed the Lee requirement to “specify a rationale” for any substantial disparity in division. Nor did it address Kyle’s alternative proposal—selling the Rugby home to equalize equity—or the Olson principle of preserving inherited property “where fairly possible.”

Impact

This decision reinforces several critical mandates for North Dakota trial courts:

Every custody ruling under NDCC § 14-09-06.2 must identify the factual basis for each relevant best interest factor and explain how they combine to support the ultimate award.
Where a party seeks equal or joint custody, courts must analyze and expressly reject or adopt that arrangement in light of the child’s welfare and parental cooperation.
Non-custodial parents are presumptively entitled to meaningful extended summer parenting time unless a reasoned explanation for denial appears on the record.
Property awards must apply Ruff-Fischer guidelines, acknowledging both the origin and sentimental worth of assets, and must articulate a coherent rationale for any imbalances.

Future litigants and courts will rely on Shively v. Shively to demand transparency in bench-trial decisions—ensuring appellate review remains meaningful and that decisions rest on discernible facts and principles.

Complex Concepts Simplified

Clearly Erroneous Review: Appellate courts defer to trial court fact-finding unless there is no evidence or the decision reflects a misunderstanding of law.
Best Interest Factors (NDCC § 14-09-06.2): A checklist (a)–(m) courts use to decide which parent’s home best serves the child’s physical, emotional, educational, and social welfare.
Primary vs. Equal Residential Responsibility: “Primary” awards one parent majority custody; “equal” (or joint) splits custody time and decision-making responsibilities more evenly.
Extended Summer Parenting Time: Additional weeks or weekends during summer break to foster parent-child bonds, routinely granted unless compelling reason to deny.
Ruff-Fischer Guidelines: A non-exhaustive list of factors guiding equitable division of marital property—ages, earning capacity, length of marriage, origin of assets, sentimental value, etc.
Separate vs. Marital Property: All property owned by either spouse during marriage is presumed marital; inherited or gifted property enters the pool but origin and intended use influence distribution.

Conclusion

Shively v. Shively crystallizes the principle that judicial discretion in family law must be exercised transparently and grounded in explicit factual findings. By reversing and remanding for reasoned explanations on custody, parenting time, and property awards, the Supreme Court of North Dakota has fortified procedural safeguards ensuring trial courts justify their most consequential decisions. In doing so, the Court upholds the integrity of appellate review, promotes consistency in family law outcomes, and protects the fundamental interests of children and spousal equities in divorce proceedings.