Schneider v. Livingston

12 Citing cases

  1. Nefzger v. Nefzger

    595 N.W.2d 583 (N.D. 1999)   Cited 10 times
    Holding the trial court could properly view the mother's marijuana use as not being indicative of bad character which would adversely affect the children and that alcoholism does not pose a complete bar to custody when there is no evidence it interfered with the ability of the mother to care for the children

    Jerry contends the trial court erred in finding Barbara was the primary caretaker during the marriage. [¶ 17] Although the primary caretaker rule has not been given presumptive status in this state, it remains a relevant factor to be considered by the trial court in its review of the statutory best interests factors under N.D.C.C. § 14-09-06.2. See Schneider v. Livingston, 543 N.W.2d 228, 230 (N.D. 1996). Generally, the primary caretaker is the parent who provides the child with daily nurturance, care and support. See Reeves v. Chepulis, 1999 ND 63, ¶ 17.

  2. Harvey v. Harvey

    855 N.W.2d 657 (N.D. 2014)   Cited 3 times

    Gravning, at 622. [¶ 26] Although primary caretaker has been referred to as a “factor” in decisions like Gravning, 389 N.W.2d at 622; Schneider v. Livingston, 543 N.W.2d 228, 230 (N.D.1996); and DesLauriers v. DesLauriers, 2002 ND 66, ¶ 8, 642 N.W.2d 892, the vast majority of North Dakota references use the phrase as a general descriptive term for the parent who most often provides direct care and supervision of a child. See, e.g., Wald v. Holmes, 2013 ND 212, ¶ 17, 839 N.W.2d 820; Frey v. Frey, 2013 ND 100, ¶ 12, 831 N.W.2d 753. The general use of the phrase is acceptable, and is in keeping with the holding in Gravning that the concept of a primary caretaker was inherent in many of the statutory factors.

  3. Heinle v. Heinle

    2010 N.D. 5 (N.D. 2010)   Cited 42 times

    L.C.V., at ¶ 4. The district court does not have to, nor should it, regard a custody investigator's recommendation as conclusive. See Schneider v. Livingston, 543 N.W.2d 228, 233 (N.D. 1996) (involving a guardian ad litem's recommendation) (citing McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D. 1995)). [¶ 8] Here, the district court found factors (a), (b), (c), (f), (g), (j), and (m) favored Angie Heinle. The district court found factors (d) and (h) favored neither party, while factors (e), (i), (k), and ( l) were irrelevant to this case.

  4. P.A. v. A.H.O

    2008 N.D. 194 (N.D. 2008)   Cited 11 times

    We have previously upheld a custody order where the district court found factor (b) in favor of a parent who had achieved a college degree and had fostered her child's education, while the other parent had only completed two years of college and had not been involved in his child's educational activities. Schneider v. Livingston, 543 N.W.2d 228, 231 (N.D. 1996). In this case, the district court was not clearly erroneous in finding that A.H.O. was more disposed to further J.O.'s education.

  5. Coons v. Coons

    2003 N.D. 115 (N.D. 2003)

    Schmaltz, 1998 ND 212, ¶ 9, 586 N.W.2d 852 (citing N.D.C.C. § 14-09-06.1; Schneider v. Livingston, 543 N.W.2d 228, 233 (N.D. 1996)). Section 14-09-06.

  6. Hogan v. Hogan

    2003 N.D. 105 (N.D. 2003)   Cited 29 times

    The weight assigned to a guardian ad litem's testimony and recommendation is within the trial court's discretion, and the court does not have to, nor should it, regard a guardian ad litem's testimony and recommendation as conclusive. Schmaltz, at ¶ 9 (quoting Schneider v. Livingston, 543 N.W.2d 228, 233 (N.D. 1996) (citations omitted)). [¶ 11] "Although it is appropriate to consider the opinion of the guardian ad litem in determining custody, it is within the trial court's discretion to assign the weight given to such evidence."

  7. McDowell v. McDowell

    2001 N.D. 176 (N.D. 2001)   Cited 31 times
    Reversing and remanding for further findings because the Court was unable to determine what weight the district court gave to a best interest factor

    See Tishmack v. Tishmack, 2000 ND 103, ¶ 22, 611 N.W.2d 204. If the trial court receives no evidence about the child's preference because of the child's young age, the court has implicitly determined the child is not capable of intelligently choosing between parents. See Schneider v. Livingston, 543 N.W.2d 228, 232 (N.D. 1996). At the time of trial, Roy was eight years old and in the third grade. The trial court addressed the preference factor, and we conclude its finding is not clearly erroneous.

  8. HURT v. HURT

    2001 N.D. 13 (N.D. 2001)   Cited 9 times

    Although it is appropriate to consider the opinion of the guardian ad litem in determining custody, it is within the trial court's discretion to assign the weight given to such evidence. Kjelland v. Kjelland, 2000 ND 86, ¶ 13, 609 N.W.2d 100. The court is not required to, nor should it, regard a guardian ad litem's testimony and recommendation as conclusive. Schmaltz v. Schmaltz, 1998 ND 212, ¶ 9, 586 N.W.2d 852 (citing Schneider v. Livingston, 543 N.W.2d 228, 233 (N.D. 1996)). The guardian ad litem's report indicated both parties have difficulty controlling their anger.

  9. Kjelland v. Kjelland

    2000 N.D. 86 (N.D. 2000)   Cited 20 times
    Finding that mother and father shared duties caring for children supported by evidence parties' work schedules was “most determinative” factor of who was taking care of the children

    Based on the evidence, the trial court did not clearly err in finding both parties shared caretaking duties during the marriage. One party's mere spending more time with the children than the other party is not determinative of stability or caretaking.Schneider v. Livingston, 543 N.W.2d 228, 232 (N.D. 1996). [¶ 16] The foregoing shows there is evidence supporting the trial court's determination the best interests of the children favor awarding custody to Tom. Reviewing the entire record, we are not left with a definite and firm conviction a mistake has been made.

  10. Reeves v. Chepulis

    591 N.W.2d 791 (N.D. 1999)   Cited 19 times
    Stating "[w]hile section 14-09-06.2(j) does not specifically set forth a procedure for addressing reciprocal domestic violence, we have said the trial court must `measure the amount and extent of domestic violence inflicted by both parents,' and `make detailed findings' determining whether the presumption arises as to one parent or not at all"

    [¶ 17] Karen also argues the trial court erred by concluding she was not Michael's primary caretaker. Although the primary caretaker rule has not been given presumptive status in this state, it remains a relevant factor to be considered by the trial court in its review of the statutory factors under N.D.C.C. § 14-09-06.2. Schneider v. Livingston, 543 N.W.2d 228, 230 (N.D. 1996); Gravning v. Gravning, 389 N.W.2d 621, 622 (N.D. 1986) (stating the primary caretaker rule "inheres in the statutory factors and has not yet been accorded elevated status"). The primary caretaker is generally the parent who provides the child with daily nurturance, care and support — the following activities have been held to be indicia of primary caretaker status: "(1) preparing and planning meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning and care of clothing; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers; (6) arranging alternative care, i.e., babysitting, day-care; (7) putting child to bed at night, waking child in the morning; (8) disciplining child, i.e., teaching general manners and toilet training; (9) educating, i.e., religious, cultural, social, etc.; [or] (10) teaching elementary skills, i.e., reading[,] writing and arithmetic. . . ."