“Prima Facie or Nothing”: Carvalho v. Carvalho and the North Dakota Supreme Court’s Clarification of Custody-Modification Standards

Introduction

Carvalho v. Carvalho, 2025 ND 129, emerges from a protracted post-divorce custody battle between Amanda Fox (formerly Carvalho) and Cesar Carvalho. Having divorced in 2010 and amended their judgment seven times, the parties again found themselves in litigation when Amanda filed a contempt motion. Cesar responded with a motion to modify primary residential responsibility (custody) of their two minor children. The District Court for Cass County summarily denied Cesar’s motion, finding he had not established a prima facie case. On appeal, the North Dakota Supreme Court (NDSC) affirmed, simultaneously chiding the district court for its sparse findings while cementing doctrinal guidance on:

What constitutes a prima facie showing for custody modification after two years, and
How appellate review proceeds when the district court’s reasoning is minimal.

Summary of the Judgment

Justice Crothers, writing for a unanimous court, held that Cesar failed to supply competent, admissible evidence showing a material change of circumstances that would necessitate modifying custody in the children’s best interests as required by N.D.C.C. § 14-09-06.6(6)(b). Because Cesar’s affidavits rested largely on conclusory assertions and hearsay, they did not satisfy the prima facie threshold. Consequently, the district court properly denied an evidentiary hearing.

Concurring, Justice Bahr agreed with the outcome but criticized the district court’s order for its “three conclusory sentences,” emphasizing the judiciary’s duty to articulate reasons—especially in family-law matters—to facilitate meaningful appellate review and inform the parties.

Analysis

1. Precedents Cited

Kunz v. Slappy, 2021 ND 186, 965 N.W.2d 408
• Introduced the heightened requirement that a moving party show the change “so adversely affected the child” that modification is compelled. Carvalho cites Kunz as the controlling test.
Kerzmann v. Kerzmann, 2021 ND 183, 965 N.W.2d 427
• Re-affirmed that affidavits must be based on personal knowledge; otherwise, they are incompetent.
Johnshoy v. Johnshoy, 2021 ND 108, 961 N.W.2d 282
• Defined a prima facie case as “only enough evidence to permit a fact-finder to infer the fact at issue.”
Falcon v. Knudsen, 2023 ND 94, 990 N.W.2d 749 & Jensen v. Jensen, 2023 ND 22, 985 N.W.2d 679
• Clarified that deficiencies may be resolved only if counter-affidavits conclusively negate the movant’s credibility; otherwise, the motion fails on its own face.
Hankey v. Hankey, 2015 ND 70, 861 N.W.2d 479 and Baker v. Baker, 2019 ND 225, 932 N.W.2d 510
• Highlighted the appellate court’s frustration with conclusory district-court orders—echoed in Justice Bahr’s concurrence here.
Weber v. Pennington, 2025 ND 105
• Recently confirmed the NDSC’s de novo standard of review when a district court denies a custody-modification motion for lack of a prima facie case.

2. Legal Reasoning

The Supreme Court applied a two-step statutory framework (N.D.C.C. § 14-09-06.6):

More than two years since the last custody order, the movant must show (a) a material change in circumstances and (b) that modification is necessary to serve the child’s best interests.
The movant must first pass a prima facie gatekeeper test via sworn affidavits; only then is an evidentiary hearing warranted.

Cesar’s allegations—hostile co-parenting, a child’s stated preference, pet allergies exacerbating asthma, and an alleged assault by Amanda’s new husband—were insufficient because:

They lacked first-hand, documentary, or medical corroboration.
He offered no evidence that the children’s condition had declined since the last order (the “general decline” prong from Kunz).
Hearsay, speculation, and “mere allegations” cannot establish prima facie grounds.

Finding the affidavits incompetent on their face, the Supreme Court concluded the district court correctly bypassed a hearing. Notably, the Court acknowledged the district court’s perfunctory analysis but invoked Weber v. Pennington to conduct its own de novo review and affirm.

3. Impact of the Decision

Heightened Evidentiary Burden. Parties must attach credible, first-hand evidence (e.g., medical reports, police records, communications) to avoid dismissal at the prima facie stage.
Judicial Economy Reinforced. The ruling underscores that custody-modification hearings should not proceed on “paper-thin” allegations, preserving court resources and family stability.
Appellate Review Clarified. Even when district court findings are thin, the Supreme Court may affirm under de novo review—placing a premium on the record compiled by the parties themselves.
Warning to Trial Courts. Justice Bahr’s concurrence serves as a cautionary note: orders must articulate reasoning to aid parties and reviewing courts, lest they risk remand or criticism.
Practitioner Guidance. Attorneys should treat affidavits as mini-trials on paper, ensuring each material fact is supported by admissible evidence.

Complex Concepts Simplified

Primary Residential Responsibility: The parent with whom the child lives most of the time (formerly “custody”).
Prima Facie Case: The minimum evidence needed to let a claim proceed to a full hearing. Think of it as “clearing the starting gate.”
Material Change in Circumstances: A substantial, post-order shift (e.g., relocation, health issue) that could affect the child’s well-being.
De novo Review: The appellate court looks at the issue from scratch, giving no deference to the lower court’s legal conclusions.
Affidavit: A written statement sworn under oath. For custody disputes, it must show personal knowledge and attach documents if possible.

Conclusion

Carvalho v. Carvalho cements a stringent evidentiary doorway to custody-modification hearings in North Dakota: Only competent, first-hand evidence demonstrating a material change that adversely affects the child will unlock the courtroom. While the Supreme Court reiterated its willingness to perform de novo review when lower-court reasoning is sparse, Justice Bahr’s concurrence reminds trial courts that clarity and transparency remain judicial imperatives. Going forward, family-law litigants and practitioners must treat the prima facie stage as a substantive hurdle rather than a mere procedural formality, lest their motions be dismissed “prima facie—or nothing.”