from the District Court of Ward County, North Central
Judicial District, the Honorable Stacy Joan Louser, Judge.
C. Hays-Johnson for plaintiff and appellant.
Virginia A. Martin-Hansen for defendant and appellee.
1] William Gagnon appeals a district court judgment awarding
Tara Lara primary residential responsibility of the
parties' three children. We affirm, concluding Gagnon
failed to overcome the presumption that he not be awarded
primary residential responsibility due to domestic violence.
2] Gagnon and Lara married in 2011 and have three children.
After separating in 2014 Gagnon sued for divorce and each
party sought primary residential responsibility of the
children. The district court entered a partial judgment in
August 2015 granting the parties a divorce and an interim
order granting Gagnon primary residential responsibility of
the children. The court reserved the issue of permanent
primary residential responsibility to allow Lara an
opportunity to obtain counsel.
3] After a March 2016 hearing the district court awarded
primary residential responsibility to Lara. The court found
it was in the children's best interests to live with Lara
and have more exposure to their Native American culture. The
court also found Gagnon committed domestic violence against
Lara and he failed to clearly show the children's best
interests required him to have primary residential
4] A district court's award of primary residential
responsibility is a finding of fact that we will not set
aside unless it is clearly erroneous. Law v.
Whittet, 2015 ND 16, ¶ 4, 858 N.W.2d 636. A finding
of fact is clearly erroneous if it is induced by an erroneous
view of the law, if no evidence supports it or after
reviewing the entire record we are left with a definite and
firm conviction a mistake has been made. Adams v.
Adams, 2016 ND 169, ¶ 6, 883 N.W.2d 864. A
court's award of primary residential responsibility must
be made in light of the child's best interests,
considering the relevant best interest factors under N.D.C.C.
§ 14-09-06.2(1). Schweitzer v. Mattingley, 2016
ND 231, ¶ 22, 887 N.W.2d 541.
5] Factor (j) of the best interest factors governs domestic
"In determining parental rights and responsibilities,
the court shall consider evidence of domestic violence. If
the court finds credible evidence that domestic violence has
occurred, and there exists one incident of domestic violence
which resulted in serious bodily injury or involved the use
of a dangerous weapon or there exists a pattern of domestic
violence within a reasonable time proximate to the
proceeding, this combination creates a rebuttable presumption
that a parent who has perpetrated domestic violence may not
be awarded residential responsibility for the child. This
presumption may be overcome only by clear and convincing
evidence that the best interests of the child require that
parent have residential responsibility."
N.D.C.C. § 14-09-06.2(1)(j). When credible evidence of
domestic violence exists, it is the predominate factor in
primary residential responsibility decisions under N.D.C.C.
§ 14-09-06.2(1). Datz v. Dosch, 2013 ND 148,
¶ 18, 836 N.W.2d 598; Gietzen v. Gabel, 2006 ND
153, ¶ 9, 718 N.W.2d 552; Engh v. Jensen, 547
N.W.2d 922, 924 (N.D. 1996) ("We have interpreted the