Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable William W. McLees, Judge.
The opinion of the court was delivered by: Sandstrom, Justice.
AFFIRMED IN PART AND REVERSED IN PART.
[¶1] Katherine Edwards appeals a district court judgment awarding Robert Edwards visitation and certain legal custody rights with K.A.E., Katherine Edwards' daughter and Robert Edwards' stepdaughter, as part of a divorce action. We affirm in part and reverse in part.
[¶2] Katherine and Robert Edwards first married in "1989 or 1990." They divorced in September 1996. In December 1996, Katherine Edwards gave birth to K.A.E., whose biological father is not Robert Edwards. In September 1997, Katherine and Robert Edwards married for the second time. They had twins together in 2001. K.A.E. has lived with Katherine and Robert Edwards since shortly after her birth and has minimal contact with her biological father.
[¶3] Katherine and Robert Edwards divorced again in 2008. As part of the divorce action, the district court gave Robert Edwards visitation rights with K.A.E. The district court also gave Robert Edwards certain rights and duties with regard to K.A.E. While the district court did not refer to the rights and duties as legal custody rights but instead stated they were "rights and duties which go along with Robert's visitation privileges," they are in effect certain legal custody rights, or "decisionmaking responsibility" under the current N.D.C.C. ch. 14-09. The district court awarded Robert and Katherine Edwards the right to participate on an equal basis in making major decisions concerning K.A.E.'s upbringing, including her education, health care, and religious training; the right to mutually discuss and develop a workable agreement concerning the education of K.A.E. (and the duty to keep each other informed of the names and addresses of the schools attended by K.A.E.); the right to attend educational conferences concerning K.A.E.; the right to have reasonable access to K.A.E. by written, telephonic, and electronic means; and the right to obtain necessary medical, psychological, dental, and other health care services for K.A.E. The district court also conferred on Robert and Katherine Edwards the duties to inform each other as soon as reasonably possible of a serious accident or serious illness for which K.A.E. receives health care treatment and to immediately inform each other of a change in residential telephone number and address. The district court stated that during times when Robert and Katherine Edwards are unable to agree on an appropriate course of action for decisions concerning K.A.E., Katherine Edwards, as primary physical custodian, will make the ultimate decision. The district court also ordered that all rights and duties of Robert Edwards are subservient to those of K.A.E.'s biological father.
[¶4] Katherine Edwards appeals, arguing the district court clearly erred by awarding Robert Edwards visitation and custodial rights with K.A.E. without first finding Robert Edwards was a psychological parent and without finding such an order was necessary to prevent serious detriment to the welfare of K.A.E. Katherine Edwards also argues the district court did not have jurisdiction to adjudicate visitation and custodial rights of K.A.E. as part of the divorce, because jurisdiction over parties and their children as part of a divorce proceeding is limited to children of the marriage.
[¶5] Robert Edwards contends the appeal by Katherine Edwards was frivolous, and he requests costs and attorney's fees.
[¶6] The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.
[¶7] A district court's determinations on visitation are findings of fact, which will not be reversed on appeal unless they are clearly erroneous. Berg v. Berg, 2000 ND 36, ¶ 18, 606 N.W.2d 895. Similarly, a district court's award of custody is treated as a finding of fact and will not be reversed unless clearly erroneous. Hogan v. Hogan, 2003 ND 105, ¶ 6, 665 N.W.2d 672. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Berg, 2000 ND 36, ¶ 18, 606 N.W.2d 895.
[¶8] Katherine Edwards first contends the district court did not have jurisdiction to decide legal custody and visitation of K.A.E. as part of the divorce, because Robert Edwards is not K.A.E.'s biological father. This Court has held, however, that in a divorce proceeding, an award of custody may be made to a third party if exceptional circumstances require that such a custody disposition be made. See Worden v. Worden, 434 N.W.2d 341, 342 (N.D. 1989) (reversing an award of custody to a child's stepfather as part of a divorce, because the stepfather's presence in the child's life was "short-lived and sporadic"); Hust v. Hust, 295 N.W.2d 316, 318-19 (N.D. 1980) (reversing an award of custody to a child's grandparents as part of a divorce, because the district court failed to find exceptional circumstances justifying the award). Hamers v. Guttormson, 2000 ND 93, 610 N.W.2d 758, though not a divorce action, clearly laid out the exceptional circumstances framework. In that case, we stated:
It is well-settled that parents have a paramount and constitutional right to the custody and companionship of their children superior to that of any other person. That right, however, is not absolute, and in custody disputes between a natural parent and a third party exceptional circumstances may require, in the child's best interests to prevent serious harm or detriment to the child, that the child be placed in the custody of a third party rather than with the natural parent. While this Court has not attempted to narrowly define or circumscribe the exceptional circumstances which must exist to permit a court to consider placing custody of a minor child with a third party rather than with the natural parent, each case in which such a placement has been upheld by ...