The “Competent-Evidence Threshold” & Judicial Explanation Duty in Custody-Modification Motions
Comprehensive Commentary on Carvalho v. Carvalho, 2025 ND 129

1. Introduction

Carvalho v. Carvalho (2025 ND 129) presented the Supreme Court of North Dakota with yet another post-divorce dispute between former spouses Amanda Fox (formerly Carvalho) and Cesar Carvalho concerning the primary residential responsibility of their two minor children. Since their 2010 divorce the parties have revisited the judgment seven times, underscoring a highly litigious co-parenting relationship. Cesar’s latest motion sought to transfer primary residential responsibility from Amanda to himself, alleging a host of changed circumstances ranging from remarriages and relocations to allegations of domestic violence and medical neglect.

The district court denied the motion without an evidentiary hearing, concluding Cesar failed to establish a “prima facie” case, and provided only three brief sentences of analysis. On appeal, the Supreme Court affirmed, but used the opportunity to:

• Clarify the evidentiary quality required to clear the prima facie hurdle (“competent evidence” based on personal knowledge);
• Re-affirm that appellate review of a prima facie denial is de novo;
• Remind trial courts of their duty to supply transparent, reasoned findings even when a motion is denied at the threshold stage.

2. Summary of the Judgment

By a unanimous opinion authored by Justice Crothers, the Court held:

• Cesar’s affidavits consisted largely of uncorroborated allegations, conclusions, and matters outside his personal knowledge.
• Under N.D.C.C. § 14-09-06.6 and precedent, unsupported allegations do not create a prima facie case; therefore no evidentiary hearing was required.
• Despite the district court’s sparse reasoning, the record allowed the Supreme Court to conduct an independent de novo review and affirm.

Justice Bahr, joined by Justice McEvers, concurred to chastise the district court for failing to articulate the basis of its decision, emphasizing that litigants should not be left guessing why their motion failed.

3. Analysis

3.1 Precedents Cited

The Court anchored its decision in a line of cases defining the evidentiary and procedural framework for custody-modification motions:

• Kunz v. Slappy, 2021 ND 186 – established that a material change must adversely affect the child and show a general decline.
• Schroeder v. Schroeder, 2014 ND 106 – reiterated the two-year/ material-change requirement under § 14-09-06.6.
• Kartes v. Kartes, 2013 ND 106 – explained the purpose of a prima facie showing: to weed out meritless motions early.
• Kerzmann v. Kerzmann, 2021 ND 183 – provided an expanded definition of “competent evidence” and personal knowledge.
• Hankey v. Hankey, 2015 ND 70 – criticized conclusory district-court orders and demanded adequate findings.
• Falcon v. Knudsen, 2023 ND 94, and Jensen v. Jensen, 2023 ND 22 – underscored that deficiencies in affidavits doom a motion at the threshold.
• Weber v. Pennington, 2025 ND 105 – expressly applied de novo review to denials for lack of a prima facie case.

Collectively these cases form what might now be called the “Competent-Evidence Threshold” doctrine: unless the movant’s affidavits contain first-hand, factual, and admissible information showing both changed circumstances and detriment to the child, no hearing is warranted.

3.2 Legal Reasoning

The Court proceeded in three analytical steps:

1. Statutory Gatekeeping. Under § 14-09-06.6(4) the movant bears the initial burden to show a material change and that modification is necessary for the child’s best interests.
2. Quality of Evidence. Echoing Kerzmann, the Court held that only affidavits based on personal knowledge and providing concrete facts (e.g., medical records, police reports, school records) suffice. Assertions “on information and belief” or recounting third-party statements are deficient.
3. Appellate Posture – De Novo Review. Because the presence of a prima facie case is a question of law, the Supreme Court reviews such denials without deference. Hence, even sparse trial-court orders can be affirmed if the record independently fails to satisfy the threshold.

3.3 Impact of the Decision

Carvalho cements two practical expectations in North Dakota family law:

• For Litigants & Counsel. Custody-modification motions must be meticulously documented — medical reports, sworn statements from first-hand witnesses, law-enforcement reports, or school records — or they will be summarily denied.
• For District Courts. While Carvalho ultimately affirmed a minimal order, the concurrence signals that future cursory rulings risk remand or reversal. Trial judges are now on alert to provide clear, pinpoint references to contested allegations and credibility findings.
• For Appellate Practice. The reaffirmation of de novo review means appellants cannot rely on “standard of review deference” arguments— instead, they must present a record that substantively meets the threshold.
• Doctrinal Evolution. The decision subtly shifts focus from whether changed circumstances exist to how well those circumstances are evidenced at the pleading stage, elevating evidentiary rigor.

4. Complex Concepts Simplified

• Prima Facie Case: A minimal evidentiary showing that, if believed, could prove the claim. Think of it as “clearing the courthouse door.”
• De Novo Review: The appellate court re-examines the issue from scratch, giving no deference to the lower court’s conclusion.
• Material Change of Circumstances: A significant new fact arising after the last order that affects the child’s welfare, not merely the parent’s convenience.
• Competent Evidence: Information that would be admissible at trial and is based on the witness’s personal knowledge.

5. Conclusion

Carvalho v. Carvalho reinforces that North Dakota courts will not expend resources on ill-supported custody-modification motions. The decision fortifies the “Competent-Evidence Threshold” doctrine while concurrently reminding district judges that brevity must not eclipse transparency in judicial reasoning. For family-law practitioners, the takeaway is unequivocal: compile concrete, first-hand documentation or risk dismissal without a hearing. From a systemic perspective, Carvalho balances efficiency (screening out meritless motions) with accountability (requiring articulated findings), thereby refining the procedural architecture of post-judgment custody litigation in North Dakota.