Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Gerald H. Rustad, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
[¶1] Jana Slater appealed from the district court judgment granting primary custody of her son to Tim Sorenson, the child's father. We reverse and remand for further findings.
[¶2] On May 11, 2008, a child was born to Slater and Sorenson. The parents were never married. The child lived with Slater following his birth. On May 20, 2008, Sorenson petitioned to establish paternity, child support and medical support. On August 5, 2008, Sorenson moved for an interim order granting him temporary custody of the child. The district court denied the motion on March 25, 2009.
[¶3] In November 2008, Sorenson exercised his weekend parenting time with the child and dropped the child off at daycare on a Monday morning. The next day, the parents and child attended a hearing on Sorenson's motion for an interim order for custody. That evening, Slater observed the child appeared to be in pain and took the child to the emergency room. The doctor who treated the child asserted the child had a broken clavicle. On November 20, 2008, Slater filed an ex parte motion to have Sorenson restricted to supervised visitation. The district court issued a temporary order for supervised visitation the same day. At a hearing the next day, the district court received affidavits and heard testimony from the doctor. The doctor testified Slater made comments at the hospital indicating she believed the child's clavicle was broken during his visitation with Sorenson. The doctor believed this was inconsistent with the nature of the injury, as the swelling over the fracture indicated it was a very recent injury. Because Slater's statement was inconsistent with the injury, the doctor filed a report with social services. After an investigation, social services did not require any services, but recommended the parents attend a parenting class. The district court subsequently vacated its temporary order.
[¶4] In March 2009, Sorenson moved for the appointment of a guardian ad litem and/or custody investigator. Slater responded that she did not object to the appointment of a custody investigator, but did object to some factual assertions in Sorenson's motion and affidavit. The notice of motion indicates hearing on the motion would be held at the same time as a previously calendared scheduling conference. The record does not reflect the district court's decision on Sorenson's motion, as it appears the scheduling conference was not conducted on the record.
[¶5] The district court held trial on Sorenson's petition on July 27 and 28, 2009. The district court heard testimony from the parents, Sorenson's girlfriend, his brother, his brother's girlfriend, Slater's sisters, and her mother. The district court also took judicial notice of the affidavits and testimony submitted regarding Slater's ex parte motion for supervised visitation. Sorenson submitted a proposed parenting plan, asserting it would be in the child's best interests that he exercise primary residential responsibility, subject to Slater's right to scheduled parenting time. Sorenson's proposed parenting plan also explained how the parents would exercise their rights and responsibilities and their decisionmaking responsibility. On September 21, 2009, the district court issued its order. The district court made the following findings regarding the best interests factors:
a. The love, affection, and other emotional ties existing between the parents and the child and the ability of each parent to provide the child with nurture, love, affection, and guidance.
Evidence from each parent and other family members indicate both have the appropriate ties and capabilities. This factor favors neither parent.
b. Parent ability to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
Both have the ability to assure the child's necessities. The father's home is shown to be a safe environment. No evidence was presented regarding the mother's home. This factor slightly favors the father.
c. Developmental needs of child and the ability of each parent to meet those needs, both in the present and in the future.
No evidence was presented specifically on this subject. Father's personal situation and home is more organized which implies better ability to address this section.
d. Sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community.
The child has primarily lived with the mother. However, the home environment of the father appears more stable. Each parent (and presumably the child if they have custody) lives with their own parents and siblings. Thus, the extended family of each is a significant factor in this case. The extended family of the father exhibits more stability as does the father as compared to the mother. This factor favors the father.
The child is young enough that a change of primary caretaker at this point should not be an issue.
e. Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
The mother's position is that she is the mother and thus entitled to call all the shots. The incident relating to attempting to restrict visitation based upon sketchy information emphasizes that point.
On the other hand, the father is more rigid and would want to set all the guidelines for the child even when not in his custody.
It appears that this situation by both parties will continue.
Neither party is favored.
f. The moral fitness of the parents.
Neither party is perfect but neither is unfit. This is not a deciding factor.
g. The mental and physical health of ...