These circumstances are certainly relevant factors to be considered in determining a child's best interests. In Lapp v. Lapp, 336 N.W.2d 350, 353 (N.D. 1983), this court concluded that: ". . . the circumstances of `living together' alone does not mandate a transfer of custody.
Daley, 348 N.W.2d at 447. We rejected the trial court's "principal reliance on the uncertain status" of the grandmother's relationship with her companion of over twenty years, quoting from Lapp v. Lapp, 336 N.W.2d 350, 353 (N.D. 1983): ". . . the circumstances of `living together' alone does not mandate a transfer of custody.
Barstad v. Barstad, 499 N.W.2d 584 (N.D. 1993); Gould v. Miller, 488 N.W.2d 42 (N.D. 1992); Orke v. Olson, 411 N.W.2d 97 (N.D. 1987). As the party seeking the change, Dianne has the burden of showing both that a circumstance changed significantly and that this change so adversely affected the child that custody should be changed. Gould, supra; Lapp v. Lapp, 336 N.W.2d 350 (N.D. 1983). There are changed circumstances in this case: Jon remarried, Dianne informed the children that she is a lesbian, Dianne resides with her lesbian partner, and the children refuse to exercise their visitation with Dianne.
Orke v. Olson, 411 N.W.2d 97 (N.D. 1987), Wright, supra; Starke v. Starke, 458 N.W.2d 758 (N.D.App. 1990). The party seeking a change of custody must establish a significant change in circumstances which either "requires" [ Lapp v. Lapp, 336 N.W.2d 350 (N.D. 1983)] a change of custody for the child's best interests or "fosters" [ Ebertz v. Ebertz, 338 N.W.2d 651 (N.D. 1983)] or "serves" [ Ludwig v. Burchill, 481 N.W.2d 464 (N.D. 1992)] the child's best interests. The significant change in circumstances must so adversely affect the child that custody should be changed. Gould v. Miller, 488 N.W.2d 42 (N.D. 1992).
Orke v. Olson, 411 N.W.2d 97, 99 (N.D. 1987). If the court finds a significant change in circumstance, it must then consider whether the change compels a custodial change for the best interests of the child. Id. The parent seeking to modify custody has the burden of showing both that a circumstance changed significantly and that this change so adversely affected the child that custody should be changed. Lapp v. Lapp, 336 N.W.2d 350 (N.D. 1983). As the movant, Randall had this burden.
The burden is on the party seeking modification to demonstrate that there has been a significant change of circumstances which requires a change in custody. Lapp v. Lapp, 336 N.W.2d 350 (N.D. 1983). The trial court's determination on a motion to modify an original custody award is subject on appeal to the clearly erroneous standard of review under Rule 52(a), N.D.R.Civ.P. Therefore, the trial court's findings will not be set aside unless they are clearly erroneous.
The burden of showing a change of circumstances which, in the best interests of the child, requires a change of custody is on the party seeking modification. Lapp v. Lapp, 336 N.W.2d 350 (N.D. 1983). The term "changed circumstances" has been described as new facts which were unknown to the moving party at the time the decree was entered.
Contradictory evidence was provided by Susan Plambeck, a neighbor of Shirley's who shared the transportation duties with Sheryl Slagle. Susan Plambeck said that no such transportation arrangements had been made and that Katherine was often left alone before and after school. It is for the trial court to determine whether or not an arrangement for Katherine's transportation to and from school and care after school had been made, as the trial court is in the best position to determine the credibility of the witnesses by hearing and observing them. Ebertz v. Ebertz, 338 N.W.2d 651, 654 (N.D. 1983); Lapp v. Lapp, 336 N.W.2d 350, 353 (N.D. 1983) (citing Lapp, 293 N.W.2d at 129). In discussing our review when governed by the "clearly erroneous" standard we have stated:
Troubled that "Jeanine chose not to participate in the evaluation by Dr. Deitz, nor did she utilize the Employee Assistance Program [for psychological testing and counseling] made available to her through her employer, Dakota Hospital," the trial court weighed Vanessa's social isolation and depression significantly. Whether changes in circumstances authorize a redetermination of placement of a child's custody is a question of fact. Miller v. Miller, 305 N.W.2d 666 (N.D. 1981); Lapp v. Lapp, 336 N.W.2d 350 (N.D. 1983); Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662 (N.D. 1986). The changes must not only be significant, but they must also indicate that a change in custody will promote the child's best interests.
"The burden of showing a change of circumstances which affects the best interests of the child and requires a change in custody is on the party seeking modification. Lapp v. Lapp, 336 N.W.2d 350 (N.D. 1983). On appeal, this court will not set aside the trial court's determination unless it is clearly erroneous under Rule 52(a), N.D.R.Civ.P. Ebertz, supra; Lapp, supra.