Modification of Nonparent Visitation Must Proceed Under N.D.C.C. § 14-09.4-14 (Even When the Parent Moves to Modify a Foreign Order)

A. Precedents Cited

The Opinion relies on several prior decisions to structure its review standards, statutory interpretation approach, and remand procedure. The cited authorities function less as custody/visitation precedents and more as interpretive and procedural guideposts.

1. Jurisdiction review standards under the UCCJEA

• Trenton Indian Housing Auth. v. Poitra, 2022 ND 87 (quoting Gustafson v. Poitra, 2018 ND 202): The Court uses these cases to restate the standard of review for subject-matter jurisdiction—de novo where facts are undisputed; otherwise, mixed questions with clearly erroneous review for factual findings. This framing matters because the Poraths challenged jurisdiction as a “technical” insufficiency in findings, requiring the Court to examine the record-based findings supporting UCCJEA jurisdiction.

2. Statutory interpretation (avoid surplusage; read statutes as a whole)

• State v. Berkley, 2025 ND 134 (quoting State v. Riggin, 2021 ND 87 and State v. Enriquez, 2024 ND 164): Cited for core interpretive rules—give effect to every word; do not construe statutes so that provisions become surplusage. These principles drive the Court’s central holding that limiting chapter 14-09.4 to proceedings where a nonparent “seeks” visitation would nullify the chapter’s explicit modification mechanism in N.D.C.C. § 14-09.4-14.
• S.E.L. v. J.A.P., 2019 ND 16 (quoting Altru Specialty Servs., Inc. v. N.D. Dep't of Human Servs., 2017 ND 270): Reinforces the anti-surplusage rule. The Court invokes it to reject the district court’s narrow reading of chapter 14-09.4.
• State v. Castleman, 2022 ND 7 and State v. Bell, 2025 ND 201: Both support reading statutes “as a whole” and within context. This supports the conclusion that § 14-09.4-02(1)’s reference to a proceeding where a nonparent “seeks” visitation cannot be read in isolation to defeat § 14-09.4-14’s express authorization to modify existing orders.

3. Appellate court authority to apply relevant law not raised by parties

• State v. Holecek, 545 N.W.2d 800 (N.D. 1996): The Court cites Holecek for the proposition that it is the Court’s duty to apply relevant statutes even if parties did not identify them. This is pivotal: neither side highlighted N.D.C.C. § 14-09.4-14 in the district court, yet the Supreme Court applied it as controlling.
• Edison v. Edison, 2023 ND 141: Reinforces that the Court may rely on legal authority found during its own research and is not confined to the parties’ citations.

4. “Right result, wrong reason” doctrine (and its limits)

• State ex rel. City of Marion v. Alber, 2018 ND 267: The Poraths invoked Alber to argue affirmance even if the district court used the wrong statute. The Court distinguishes that doctrine: because the controlling statutory tests differ materially, the appellate court could not conclude the result would be the same under the correct test.

5. Successor judge procedure on remand

• Bullinger v. Sundog Interactive, Inc., 2023 ND 138; Kershaw v. Finnson, 2022 ND 165; Weigel v. Weigel, 1999 ND 55: These cases explain application of N.D.R.Civ.P. 63 when a successor judge takes over a case. They support the instruction that the new judge must certify familiarity with the record, determine proceedings can be completed without prejudice, and hold a new hearing if necessary.

6. Persuasive interpretive authorities on “different language, different meaning”

• DIRECTV, Inc. v. Brown, 371 F.3d 814 (quoting Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d 854), and Lindsey v. Farmers Ins. Co. of Oregon, 12 P.3d 571: The Court cites these to support the inference that different statutory wording signals a different legislative intent. This buttresses the conclusion that the “material change” focus of N.D.C.C. § 14-09-06.6 is not interchangeable with the “substantial and continuing change” standard in N.D.C.C. § 14-09.4-14.

B. Legal Reasoning

1. UCCJEA: jurisdiction to modify a registered foreign visitation order

The Court first resolves a threshold challenge: whether North Dakota had jurisdiction to modify the Canadian final visitation order. Applying N.D.C.C. § 14-14.1-04(1), the Court treats Canada as if it were a “state” under the UCCJEA. Because the Canadian final order grants visitation, it qualifies as a “child custody determination” under N.D.C.C. § 14-14.1-01(2), making Canada the “issuing state” under N.D.C.C. § 14-14.1-01(9).

Modification jurisdiction turns on N.D.C.C. § 14-14.1-14(2): North Dakota must have initial-determination jurisdiction (satisfied because North Dakota is the child’s home state under N.D.C.C. § 14-14.1-12(1)(a) and § 14-14.1-01(6)), and either jurisdiction must determine that the child, parents, and any “person acting as a parent” do not presently reside in the issuing state.

The Poraths remained in Canada, but the Court concludes they do not qualify as “person[s] acting as a parent” under N.D.C.C. § 14-14.1-01(11) because they had not had six consecutive months of physical custody within the preceding year and did not have (nor claim) legal custody. With the mother deceased and father and child residing in North Dakota, the statutory conditions for North Dakota modification jurisdiction were satisfied.

2. Merits: identifying the correct substantive statute for modification

The core legal error was the district court’s choice of law. It applied N.D.C.C. § 14-09-06.6, which regulates when and how courts modify primary residential responsibility between parents. But Wardner was not seeking to change the child’s primary residence. He sought to change the Poraths’ visitation schedule—a nonparent-visitation issue.

3. Why the UCCJEA does not supply the substantive modification test

The Poraths argued the court should have applied N.D.C.C. ch. 14-14.1 (the UCCJEA) to decide the modification request. The Supreme Court rejects this as a category error: the UCCJEA answers “which forum may decide” (jurisdiction/enforcement), not “what legal standard applies to change visitation.” The district court correctly used the UCCJEA only to establish jurisdiction.

4. Chapter 14-09.4 applies even when the nonparent is not currently “seeking” visitation

The district court concluded chapter 14-09.4 did not apply because N.D.C.C. § 14-09.4-02(1) says the chapter applies to a proceeding where a nonparent “seeks custody or visitation,” and here the nonparents were defending an existing order rather than affirmatively requesting one. The Supreme Court holds this reading is untenable because it ignores N.D.C.C. § 14-09.4-14, which expressly governs modification of final nonparent custody/visitation orders. A construction that prevents § 14-09.4-14 from ever operating violates the interpretive rule against surplusage.

5. The Court’s refusal to affirm under the “right result, wrong reason” doctrine

The Opinion explains that N.D.C.C. § 14-09-06.6(6) and N.D.C.C. § 14-09.4-14(1) are not interchangeable:

• Change-in-circumstances standard differs: § 14-09-06.6(6)(a) hinges on “material” facts arising since the prior order or unknown at the time, while § 14-09.4-14(1)(a) asks whether a “substantial and continuing change” has occurred relevant to visitation/custody. The district court emphasized foreseeability/what was anticipated in the Canadian order—an analysis not clearly aligned with the “substantial and continuing” language of § 14-09.4-14.
• Best-interest analysis differs in scope: § 14-09-06.6 routes the best-interest inquiry through N.D.C.C. § 14-09-06.2, while chapter 14-09.4 requires consideration of N.D.C.C. § 14-09.4-11, which includes additional relationship- and impact-focused factors specific to parent/nonparent dynamics.
• Constitutionally inflected presumption mechanism: § 14-09.4 contains a presumption favoring a parent’s decision (see N.D.C.C. § 14-09.4-04) and special rules governing whether that presumption remains rebutted in later proceedings (see N.D.C.C. § 14-09.4-14(2)). The district court did not determine whether the Poraths had rebutted that presumption in the Canadian proceeding, and that determination may affect burdens on remand.

Because the district court did not apply the correct legal test—and because the correct test may shift burdens and relevant factors—the Supreme Court declined to affirm on alternative grounds.

6. Remand with successor-judge safeguards (N.D.R.Civ.P. 63)

The Court anticipates practical complications: the original judge retired. It therefore directs that any successor judge must comply with N.D.R.Civ.P. 63, either deciding on the existing record with proper certification (and recalling material, disputed witnesses upon request), or conducting a new hearing if the judge cannot adequately familiarize themselves without prejudice.

C. Impact

• Clarifies the correct modification statute for nonparent visitation: The ruling establishes that when a final order grants a nonparent visitation, a later motion to modify that visitation—whether brought by the parent or the nonparent—must be analyzed under N.D.C.C. § 14-09.4-14, not under the parent-to-parent residential responsibility modification statute.
• Prevents end-runs around chapter 14-09.4’s parent-centered presumption and factor set: Chapter 14-09.4 embeds a presumption that a parent’s decision about nonparent contact is in the child’s best interest and provides a defined mechanism for rebuttal. Treating modification disputes as ordinary custody/parenting-time disputes under § 14-09-06.6 could dilute those protections and distort burdens.
• Provides a roadmap for foreign (including Canadian) nonparent visitation orders: The Opinion cleanly separates (1) UCCJEA jurisdiction to modify and (2) the substantive modification standard (chapter 14-09.4). This is especially important in border-state family litigation where foreign orders are registered and later contested.
• Signals careful appellate scrutiny of “wrong statute” harmlessness: The Court’s refusal to affirm under Alber underscores that “wrong statute” errors are not harmless when the legal tests differ in language, focus, burdens, or required factors—particularly in family-law contexts where standards are outcome-determinative.
• Encourages fuller records on the presumption’s status in cross-jurisdiction cases: On remand, litigants can expect courts to address whether the nonparent previously rebutted the chapter 14-09.4 presumption (and whether it “remains rebutted” under N.D.C.C. § 14-09.4-14(2)), even when the original order was issued elsewhere.