Worden v. Worden, 880200
| Citation | 434 N.W.2d 341 |
| Decision Date | 09 January 1989 |
| Docket Number | No. 880200,880200 |
| Parties | James D. WORDEN, Plaintiff and Appellee, v. Linda M. WORDEN, Defendant and Appellant. Civ. |
| Court | United States State Supreme Court of North Dakota |
Ken R. Sorenson, of Vinje Law Firm, Bismarck, for plaintiff and appellee.
Stephen A. Flynn, of Legal Assistance of ND, Bismarck, for defendant and appellant.
Linda Worden appealed from a divorce judgment awarding custody of Elizabeth Ann Thurston (Beth) and Christopher James Worden to James D. Worden. We affirm the award of Christopher's custody to James, reverse the award of Beth's custody to James, and remand for entry of judgment placing Beth in Linda's custody.
James and Linda were married on December 16, 1985. They are the natural parents of Christopher who was born on May 21, 1985. At the time of the marriage Linda's daughter, Beth, born October 1, 1981, was four years old. Robert Jeffrey Murren is Beth's father and, although he does not exercise visitation rights, his present support obligation is $75 per month. James has not adopted Beth.
During the course of James and Linda's marriage, Linda has had primary responsibility for Beth and Christopher's daily care, while James has held various types of employment, including construction work, truck driving, and general farm labor.
The parties separated during July 1987 when James began living with another woman with whom he currently resides. Linda is currently unemployed and relies primarily on public assistance for her source of income. She has had four separate residences since the separation; an apartment that was condemned, a mobile home from which she was evicted for failure to pay rent, and a residence which she shared with eleven other persons, including her children and a boyfriend. Linda now resides alone with her two children in a one-bedroom apartment.
The trial court found that it would be in both children's best interests to be placed in James's custody with reasonable visitation for Linda. The court also found that there existed exceptional circumstances, "namely, the unstable lifestyle of [Linda] and the failure of the [natural] father to visit with his daughter," to warrant placing Beth in James's custody. On appeal Linda asserts that the trial court's award of custody is clearly erroneous.
In a divorce proceeding the trial court must award custody of a minor child based upon a determination of the best interest and welfare of the child. Sections 14-05-22(1) and 14-09-06.1, N.D.C.C. The trial court's custody determination is a finding of fact which will not be set aside on appeal unless it is clearly erroneous. Rule 52(a), N.D.R.Civ.P.
The trial court specifically found that James has a more stable lifestyle than Linda and that he has the facilities and resources, such as a home, a motor vehicle, and employment, suitable for providing care for minor children. The trial court determined that it would be in Christopher's best interest to be placed in James's custody. We are not left with a definite and firm conviction that the trial court made a mistake in this regard. We conclude, therefore, that the trial court's finding is not clearly erroneous and accordingly we will not disturb the trial court's placement of Christopher in James's custody.
A more complicated legal problem exists regarding Beth's custody. Beth is Linda's natural daughter but is neither James's natural nor adopted child. In addition, James's presence in Beth's life has been short-lived and sporadic. Beth was four years old when Linda and James were married and she was not yet six years old when James and Linda separated.
Parents have the right to the custody and companionship of their children superior to that of any other person. Hust v. Hust, 295 N.W.2d 316 (N.D.1980). When there is a custody dispute between a natural parent and a third party the test is whether or not there are exceptional circumstances which require that in the best interest of the child, the child be placed in the custody of the third party rather than with the biological parent. Mansukhani v. Pailing, 318 N.W.2d 748 (N.D.1982). The court cannot award custody to a third party, rather than the natural parent, under a "best interest of the child" test unless it first determines that "exceptional circumstances" exist to trigger the...
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McAllister v. McAllister, 20090176.
...is applicable only in custody determinations between a natural parent and another party who is not a natural parent); Worden v. Worden, 434 N.W.2d 341, 342-43 (N.D. 1989) (reversing grant of child's custody to stepfather because no exceptional circumstances warranted depriving child's mothe......
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Guardianship of Williams, Matter of
...Way, 58 N.Y.2d 850, 460 N.Y.S.2d 20, 446 N.E.2d 776 (1983); Phillips v. Choplin, 65 N.C.App. 506, 309 S.E.2d 716 (1983); Worden v. Worden, 434 N.W.2d 341 (N.D.1989); Hruby and Hruby, 304 Or. 500, 748 P.2d 57 (1987); Michael T.L. v. Marilyn J.L., 363 Pa.Super. 42, 525 A.2d 414 (1987); Skeada......
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Clark v. Wade
...custody; but it cannot be used to give custody to third party so long as the child is provided for adequately). See also Worden v. Worden, 434 N.W.2d 341 (N.D.1989) (in the absence of "exceptional circumstances," a parent is entitled to custody of a child notwithstanding that a third party ......
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Hartleib v. Simes
..."exceptional circumstances" exist, which will trigger a best interest of the child analysis. Id. at ¶¶ 11, 19 (quoting Worden v. Worden, 434 N.W.2d 341, 342 (N.D.1989)). In Barros, at ¶ 19, we held that, as a matter of law, a voluntarily established guardianship constitutes "exceptional cir......