Reaffirming the High Bar for Custody Modification in North Dakota:
The “Adverse-Effect” Test after Weber v. Pennington (2025 ND 105)

1. Introduction

In Weber v. Pennington, 2025 ND 105, the North Dakota Supreme Court once again confronted the recurring post-divorce problem: when may a parent re-open custody determinations and demand a full evidentiary hearing? Mackenzie Pennington (mother) argued that Casey Weber (father), who held primary residential responsibility for the parties’ two children, was neglecting their medical and educational needs. She therefore sought to regain primary residential responsibility. The district court dismissed her motion at the pleading stage, finding she failed to make the statutorily required prima facie showing of a “material change in circumstances that has adversely affected the children or resulted in a general decline in their condition.” In a 3-2 decision, the Supreme Court affirmed, elaborating the evidentiary threshold a movant must clear before a trial court must grant a hearing under N.D.C.C. § 14-09-06.6.

2. Summary of the Judgment

• Holding. A parent’s affidavits claiming the other parent is neglecting medical, dental, or educational duties, without competent facts showing an actual adverse impact or decline in the children’s condition, do not satisfy the prima facie requirement of § 14-09-06.6(6)(a); consequently, the court may deny an evidentiary hearing.
• Vote. Majority opinion by Justice Crothers (joined by Chief Justice Jensen and Justice Tufte); dissent by Justice Bahr (joined by Justice McEvers).
• Outcome. District court order denying a hearing is affirmed; existing allocation of primary residential responsibility to the father remains intact.
• Key Clarifications.
  1. The statutory phrase “adversely affected” does not mean the child must be “suffering,” but the movant must allege competent facts showing actual or demonstrable negative impact, not mere speculation or potential harm.
  2. A parent’s voluntary assumption of the other parent’s tasks (e.g., scheduling doctor appointments) is insufficient, by itself, to demonstrate that the children’s circumstances have worsened or declined.
  3. Parents retain a mutual statutory duty to support their children regardless of which parent enjoys primary residential responsibility.

3. Analysis

3.1 Precedents Cited and Their Influence

The decision is built on, and further refines, a robust line of North Dakota authorities governing post-judgment custody modifications:

• Schroeder v. Schroeder, 2014 ND 106 – Previously articulated that a prima facie showing exists only when new facts could justify change at trial.
• Kartes v. Kartes, 2013 ND 106 – Stressed the screening function of § 14-09-06.6: to “eliminate unsupported or frivolous cases.”
• Kerzmann v. Kerzmann, 2021 ND 183 – Confirmed that affidavits must contain competent, first-hand information establishing material change + best interests.
• Klundt v. Benjamin, 2021 ND 149; Falcon v. Knudsen, 2023 ND 94; Jensen v. Jensen, 2023 ND 22 – Explained what renders affidavits competent or conclusory.
• Anderson v. Spitzer, 2022 ND 110; Gomm v. Winterfeldt, 2022 ND 172; Anderson v. Pedie, 2022 ND 19 – Illustrated when medical or educational complaints fail to link alleged problems to the custody arrangement.
• Contrasting precedents highlighted by the dissent — Tank v. Tank, 2004 ND 15; Volz v. Peterson, 2003 ND 139; Kerzmann (again) — hold that allegations of potential endangerment can suffice.

The majority adopted the stricter branch of the jurisprudence (Anderson/Gomm), while the dissent leaned on the potential-harm line (Tank/Volz), creating a sharper doctrinal contrast.

3.2 The Court’s Legal Reasoning

1. Statutory Framework.
   • § 14-09-06.6(6)(a) – Material change in circumstances that adversely affects the child;
   • § 14-09-06.6(6)(b) – Modification must serve the child’s best interests.
   Because Pennington filed the motion more than two years after the last custody order, both prongs apply, but the court found failure at prong (a) and never reached (b).
2. Burden of Production. A moving party is entitled to a hearing only if the affidavits, assumed true, could support a change. Conclusory statements or second-hand reports are insufficient.
3. Application to Facts.
   • The affidavits showed the children were receiving medical and dental care—often because Pennington arranged it—but not that they were harmed when Weber allegedly delayed. No doctor noted worsened conditions; no exclusion from school occurred.
   • Two isolated communication lapses (dance class, homecoming) did not demonstrate systemic educational neglect or resulting decline.
   • Grandmother’s assistance with child-care is permissible and consistent with statutory “family and community” factor.
4. Mutual Duty Principle. Citing N.D.C.C. § 14-09-08, the Court reminded that both parents are obliged to support their children; the fact that Pennington continued to do so did not, by itself, prove the current arrangement was harmful.
5. Dissent’s Critique. Justice Bahr argued that allegations of potential harm (repeated sore throats, missed vaccinations) parallel the facts in Tank, and therefore should have triggered a hearing. The majority countered that “potential” without a demonstrated adverse impact elevates speculation over evidence.

3.3 Likely Impact of the Decision

• Higher Evidentiary Bar. Parents moving for custody modification in North Dakota must now present specific, first-hand facts tying alleged parental shortcomings to tangible harm or decline in the child’s condition.
• Clarified Terminology. The Court expressly disapproved conflating “adversely affected” with “suffering,” reducing confusion created by some district-court rhetoric.
• Mutual-Duty Emphasis. By stressing § 14-09-08, the decision discourages motions based solely on the fact that one parent is doing “more work” than the other.
• Dissent as Guidepost. Practitioners should still study the dissent: where credible proof of potential endangerment (e.g., food allergies, exposure to drugs) exists, a hearing may remain obligatory.
• Procedural Economy. The ruling fortifies trial courts’ gatekeeping role, likely reducing hearings on thin records and preserving judicial resources.

4. Complex Concepts Simplified

• Primary Residential Responsibility. North Dakota’s term for what many states call “physical custody” — the parent with whom the child primarily lives.
• Joint Legal Decision-Making. Both parents share authority over major decisions (education, health, religion), regardless of where the child lives.
• Prima Facie Case. A minimal evidentiary showing that, if left unrebutted, could allow the court to rule in the movant’s favor. Think of it as “getting past the courthouse door.”
• Material Change in Circumstances. New, important facts arising after the last order that could justify changing custody. Trivial or long-standing issues do not qualify.
• Adversely Affected / General Decline. The change must have hurt the child (physically, emotionally, educationally) or made their overall situation worse, not merely inconvenienced a parent.
• Evidentiary Hearing. A full, in-court hearing with live testimony and cross-examination. Parties are not automatically entitled to it; they must earn it via a prima facie showing.

5. Conclusion

Weber v. Pennington cements a stringent interpretation of § 14-09-06.6: merely alleging that the custodial parent is lax, or that the non-custodial parent is stepping in to pick up the slack, will not unlock a courtroom. The movant must present competent, first-hand facts showing the child’s condition has actually worsened. This precedent elevates evidentiary rigor, underscores the shared parental duty of care, and guides trial courts in filtering modification motions. While the dissent reminds us that potential endangerment can still compel a hearing, the majority’s rule sets a clear, high bar: “Show tangible harm, or no hearing will be held.”