State of North Dakota, Plaintiff v. Megan and Logan Hackmann, Intervenors and Appellees (2026)

[¶1] Aaron Monkman, biological father of M.R.M.-B., appeals from the district court's amended judgment. Monkman argues the court erred by awarding primary residential responsibility and sole decision-making authority to Megan and Logan Hackmann. Monkman further argues the court erred in limiting his parenting time to supervised parenting time and in calculating his child support amount. The Hackmanns request an award of attorney's fees under N.D.R.App.P. 38. We reverse the amended judgment, deny the Hackmanns’ request for attorney's fees, and remand for further proceedings consistent with this opinion.

I

[¶2] Monkman and Kristin Binney were never married but share one child together, M.R.M.-B. (born 2020). From December 2021 to March 2022, Monkman and Binney adopted an informal parenting plan. In March 2022, Monkman stopped communicating with Binney and withheld M.R.M.-B. from Binney for twelve days. On March 24, 2022, during a FaceTime visit, Binney observed bruising on M.R.M.-B. When M.R.M.-B. came back into Binney's care, M.R.M.-B. appeared underfed, dehydrated, and had lost two and a half pounds.

[¶3] Cass County Human Service Zone removed M.R.M.-B. from Monkman and Binney's care on March 25, 2022. That same day, the Zone placed M.R.M.-B. with the Hackmanns to serve as M.R.M.-B.’s foster parents. The juvenile court addressed the removal of M.R.M.-B. The juvenile court records are closed to the public, and the district court did not consider them in this matter.

[¶4] Because it was incurring foster care costs, in June 2022, the State initiated this action to establish a child support obligation against Monkman. In December 2022, the district court entered default judgment establishing a child support obligation against Monkman; the judgment did not address any other parenting rights and responsibilities regarding M.R.M.-B.

[¶5] Monkman had supervised visitation during the time the Hackmanns served as M.R.M.-B.’s foster parents. After approximately two years with the Hackmanns, on March 11, 2024, the juvenile court returned M.R.M.-B. to the care of Monkman and Binney. Monkman and Binney adopted another informal parenting plan.

[¶6] On March 12, 2024, the day after the juvenile court returned M.R.M.-B. to Monkman and Binney, the Hackmanns filed a petition to establish residential responsibility, parenting time, and child support. The Hackmanns also filed a joint motion for ex parte interim relief, in which they requested the district court permit them to intervene in the case. On March 13, 2024, the court denied the motion for ex parte interim relief, but allowed the Hackmanns to file an independent motion to intervene if they wished.

[¶7] The Hackmanns filed a motion to intervene and a renewed motion for interim relief on March 18, 2024. The next day, the district court denied the Hackmanns’ motion to intervene for failing to state the legal basis for their claim for residential responsibility or visitation of M.R.M.-B. Because there was no other explanation for their claim, the court analyzed the Hackmanns’ claim under N.D.C.C. ch. 14-09.4, the Uniform Nonparent Custody and Visitation Act. The court concluded N.D.C.C. § 14-09.4-02(3) prohibited the Hackmanns from proceeding under chapter 14-09.4, dismissed their petition, and denied their motion to intervene.

[¶8] On March 22, 2024, due to Monkman withholding M.R.M.-B. from her, Binney filed a petition to establish residential responsibility, parenting time, and child support. At the same time, Binney filed a motion for an ex parte interim order seeking temporary residential responsibility of M.R.M.-B., subject to Monkman's right to supervised parenting time, and that the district court establish child support. That same day, the court issued an ex parte interim order granting Binney temporary primary residential responsibility of M.R.M.-B., subject to Monkman's supervised parenting time. After the court granted Binney's motion for ex parte interim order, she placed M.R.M.-B. back in the Hackmanns’ care. M.R.M.-B. has remained with the Hackmanns since March 22, 2024.

[¶9] The Hackmanns filed a renewed motion to intervene and motion for temporary relief on April 19, 2024. In their motion, the Hackmanns argued they are M.R.M.-B.’s psychological parents.

[¶10] On April 26, 2024, the district court conducted a hearing on the necessity of Binney's interim order and continued the interim order without change.

[¶11] The district court conducted a hearing on the Hackmanns’ motion to intervene and motion for temporary relief on May 24, 2024. The parties agreed to limit the hearing to the motion to intervene. On June 6, 2024, the court issued an order granting the motion to intervene. In its order, the court concluded “the provisions of N.D.C.C. § 14-09.4 are not intended to be the exclusive method for a nonparent to seek custody of or visitation with a minor child.” Compare N.D.C.C. § 14-09.4-02(1) (“Except as otherwise provided in subsection 2, this chapter applies to a proceeding in which a nonparent seeks custody or visitation.”), with N.D.C.C. § 14-09.4-19 (“This chapter does not preclude the recognition of an equitable right or remedy for a psychological parent under law of this state other than this chapter.”). Based on that conclusion, the court held the Hackmanns’ psychological parent claim is a cognizable claim under North Dakota law and granted the Hackmanns’ motion to intervene.

[¶12] On July 17, 2024, the Hackmanns filed a motion to modify the interim order. They requested temporary sole decision-making responsibility and temporary primary residential responsibility of M.R.M.-B., subject to Monkman's supervised parenting time and Binney's unsupervised parenting time. Monkman filed a response to the Hackmanns’ motion and a countermotion to modify the interim order. He requested temporary sole decision-making responsibility and temporary primary residential responsibility of M.R.M.-B. Binney filed a brief in response to the competing motions. She requested the Hackmanns be awarded temporary primary residential responsibility subject to reasonable parenting time by her and Monkman, and that Monkman's parenting time be supervised.

[¶13] The district court conducted a hearing on the Hackmanns’ motion on August 30, 2024. The court issued an amended interim order on October 9, 2024. The court awarded the Hackmanns temporary primary residential responsibility and sole decision-making responsibility of M.R.M.-B. It awarded Monkman supervised parenting time through Rainbow Bridge, no less than twice per week. The court established a child support obligation for Monkman.

[¶14] On December 16 and 17, 2024, the district court conducted an evidentiary hearing on the Hackmanns’ petition to establish residential responsibility, parenting time, and child support, and Monkman's counterclaim. On February 28, 2025, the court entered an amended judgment awarding the Hackmanns primary residential responsibility of and sole decision-making authority for M.R.M.-B., subject to Monkman's supervised parenting time and Binney's unsupervised parenting time.

II

[¶15] The district court, in granting the Hackmanns’ motion to intervene, concluded “the provisions of N.D.C.C. § 14-09.4 are not intended to be the exclusive method for a nonparent to seek custody of or visitation with a minor child.” Monkman did not challenge the court's conclusion on appeal. At oral argument, Monkman, through counsel, confirmed he was not arguing the court should have addressed the Hackmanns’ petition under N.D.C.C. ch. 14-09.4.

[¶16] “When a party fails to raise an issue before the district court, even a constitutional issue, we generally will not address the issue on appeal.” Matter of Didier, 2019 ND 263, ¶ 11, 934 N.W.2d 417 (quoting In re R.A.S., 2008 ND 185, ¶ 12, 756 N.W.2d 771). We also generally do not consider arguments “not adequately articulated, supported, and briefed.” Kaspari v. Kaspari, 2023 ND 207, ¶ 9, 997 N.W.2d 621 (quoting Trosen v. Trosen, 2022 ND 216, ¶ 33, 982 N.W.2d 527). However, “[a]lthough the parties have the primary duty to bring to this Court's attention the applicable law, it is ‘not only our authority, but our duty to decide the applicability of relevant statutes to legal controversies whether or not the parties have pointed us to them or argued a particular construction.’ ” Wardner v. Porath, 2025 ND 228, ¶ 20, 29 N.W.3d 885 (quoting State v. Holecek, 545 N.W.2d 800, 804 (N.D. 1996)); see also D.G.L. Trading Corp. v. Reis, 2007 ND 88, ¶ 7, 732 N.W.2d 393 (“[I]t is appropriate we consider and apply the correct statutes in this case, even if they were not presented to the district court in the first instance.”). Otherwise, decisions might turn on “shortages in counsels” or the district court's “legal research or briefing” and result in “appellate affirmation of incorrect legal results.” Holecek, at 804 (quoting State v. Larsen, 515 N.W.2d 178, 182 (N.D. 1994). In other words, it is our duty to apply the law correctly regardless of the parties’ arguments.

[¶17] Despite Monkman's failure to raise the issue, this Court requested additional briefs from the parties regarding whether N.D.C.C. § 14-09.4-19 permits a nonparent to seek residential responsibility as a psychological parent under this Court's cases recognizing such claims if the psychological parent relationship arose solely because of the nonparent serving as a foster parent of the child, despite the limitation in N.D.C.C. § 14-09.4-02(3). Importantly, this is not a situation where the district court did not have the opportunity to address the issue. See Meridian Prop. Mgmt., LLC v. Cordie, 2026 ND 52, ¶ 19, 32 N.W.3d 308 (“A district court should have the opportunity to intelligently rule on an issue before it reaches the appellate level.”); Boyda v. Boyda, 2025 ND 193, ¶ 7, 27 N.W.3d 706 (“[A] touchstone for an effective appeal of an issue requires the issue to be properly raised in the district court so that court can intelligently rule on the issue.” (quoting Brouillet v. Brouillet, 2016 ND 40, ¶ 32, 875 N.W.2d 485)); Gerszewski v. Rostvet, 2024 ND 141, ¶ 16, 10 N.W.3d 104 (“It is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.” (quoting Albertson v. Albertson, 2023 ND 225, ¶ 8, 998 N.W.2d 811)). The district court decided the issue, but Monkman did not challenge the court's ruling on appeal. Because it is our duty to apply the law correctly, we address whether section 14-09.4-02(3) applies to this case.

III

[¶18] In his supplemental brief, Monkman asserts N.D.C.C. § 14-09.4-02(3) “expressly withdraws standing based solely on foster-parent status. The statute provides that a nonparent may not maintain a proceeding for custody or visitation solely because the nonparent served as a foster parent. This language is categorical and eliminates standing where foster care is the sole basis for the claim.” According to Monkman, N.D.C.C. § 14-09.4-19 “is a savings clause” and does not “override” the express prohibition in section 14-09.4-02(3).

[¶19] The Hackmanns respond that the prohibitions created by N.D.C.C. § 14-09.4-02(3) “only apply if a party seeks relief” under N.D.C.C. ch. 14-09.4, “and only if the existence of a foster placement is the only basis for relief.” They assert they did not seek relief under chapter 14-09.4, “but instead sought equitable relief by virtue of their position as the minor child's psychological parents.” They further assert they did not seek residential responsibility of M.R.M.-B. “solely” because they served as her foster parents.

A

[¶20] Statutory interpretation presents a question of law that we review de novo. Bang v. Cont'l Res., Inc., 2025 ND 131, ¶ 55, 23 N.W.3d 895; Cass Cnty. v. KNB Props. LLC, 2024 ND 226, ¶ 19, 14 N.W.3d 914. “We construe statutes as a whole, giving meaning and effect to every word, phrase, and sentence, and giving words in a statute their plain, ordinary, and commonly understood meaning, unless they are defined by statute or unless a contrary intention plainly appears.” Int. of K.I.B., 2025 ND 157, ¶ 11, 26 N.W.3d 117. “A cardinal rule of statutory construction requires interpretation of related provisions together, if possible, to harmonize and to give meaning to each provision.” Kroschel v. Levi, 2015 ND 185, ¶ 18, 866 N.W.2d 109 (quoting Martin v. Stutsman Cnty. Soc. Servs., 2005 ND 117, ¶ 13, 698 N.W.2d 278); see also Fahey v. Cook, 2024 ND 138, ¶ 22, 9 N.W.3d 668 (“We construe statutes as a whole, harmonize them to give meaning to related provisions, and interpret them to give effect to all of their provisions.”). “In other words, ‘we interpret statutes in context and in relation to others on the same subject to give meaning to each without rendering one or the other useless.’ ” RMM Props., L.L.L.P. v. City of Minot, 2024 ND 213, ¶ 9, 14 N.W.3d 31 (quoting BASF Corp. v. Symington, 512 N.W.2d 692, 696 (N.D. 1994)); see also S.E.L. v. J.A.P., 2019 ND 16, ¶ 11, 921 N.W.2d 640 (“Statutes are interpreted to give effect to all of their provisions, and no part of the statute is rendered inoperative or superfluous.” (quoting Altru Specialty Servs., Inc. v. N.D. Dep't of Hum. Servs., 2017 ND 270, ¶ 10, 903 N.W.2d 721)). If the conflict between two provisions is irreconcilable, the specific statute controls over the general statute. N.D.C.C. § 1-02-07; State v. Sapa, 2022 ND 197, ¶ 15, 981 N.W.2d 843.

[¶21] Importantly, the legislature is the policy-making branch of government. In re Mangelsen, 2014 ND 31, ¶ 19, 843 N.W.2d 8 (“It is for the legislature, not the courts, to identify and determine the public policy of the state.”); Montana-Dakota Utils. Co. v. Johanneson, 153 N.W.2d 414, 423 (N.D. 1967) (“As a part of the law-making power of the Legislative Assembly, it has the right to determine legislative policy.”). “The policies which it adopts may be wise or otherwise, but it is not the prerogative of the courts to question the wisdom of the laws which the Legislature enacts.” Montana-Dakota Utils., at 423. “This Court's function is to interpret the statute as written by the legislature[.]” In re Mangelsen, ¶ 19.

B

[¶22] North Dakota adopted its version of the Uniform Nonparent Custody and Visitation Act, codified in N.D.C.C. ch. 14-09.4, in 2019. 2019 N.D. Sess. Laws ch. 131. Section 14-09.4-02(1), N.D.C.C., provides, “Except as otherwise provided in subsection 2, this chapter applies to a proceeding in which a nonparent seeks custody or visitation.” Section 14-09.4-02(2) does not exclude the application of chapter 14-09.4 to this case.¹ Section 14-09.4-02(3) provides, “A nonparent may not maintain a proceeding under this chapter for custody of or visitation with a child solely because the nonparent served as a foster parent of the child.” Although a nonparent may not seek residential responsibility of or visitation with a child under N.D.C.C. ch. 14-09.4 based solely on the nonparent serving as a foster parent of the child, chapter 14-09.4 “does not preclude the recognition of an equitable right or remedy for a psychological parent under law of this state other than [chapter 14-09.4].” N.D.C.C. § 14-09.4-19.

C

[¶23] North Dakota judicially recognized that third parties found to be psychological parents may be awarded primary residential responsibility of or visitation with a child under exceptional circumstances. McAllister v. McAllister, 2010 ND 40, ¶ 32, 779 N.W.2d 652 (Crothers, J., concurring) (stating “North Dakota is in the minority of jurisdictions that judicially recognize third-party custody or visitation claims absent legislation”). “A person who provides a child's daily care and who, thereby, develops a close bond and personal relationship with the child becomes the psychological parent to whom the child turns for love, guidance, and security.” McAllister, ¶ 15 (quoting Hamers v. Guttormson, 2000 ND 93, ¶ 5, 610 N.W.2d 758). In McAllister, we explained:

It is well-settled that parents have a paramount and constitutional right to the custody and companionship of their children superior to that of any other person. That right, however, is not absolute, and in custody disputes between a natural parent and a third party exceptional circumstances may require, in the child's best interests to prevent serious harm or detriment to the child, that the child be placed in the custody of a third party rather than with the natural parent. While this Court has not attempted to narrowly define or circumscribe the exceptional circumstances which must exist to permit a court to consider placing custody of a minor child with a third party rather than with the natural parent, each case in which such a placement has been upheld by this Court has involved a child who has been in the actual physical custody of the third party for a sufficient period of time to develop a psychological parent relationship with that third party.

Id. ¶ 14 (quoting Edwards v. Edwards, 2010 ND 2, ¶ 8, 777 N.W.2d 606). Thus, the existence of a psychological parent relationship is the first step in determining whether a child may be placed with a third party. Before a child may be placed with a psychological parent rather than with the natural parent, the court must find exceptional circumstances require the child be placed with the psychological parent rather than with the natural parent. Hamers, ¶ 5 (“The establishment of a psychological parent relationship, however, does not end the court's inquiry; rather it necessitates further inquiry as to whether the exceptional circumstances of the case require the child to remain in the custody of the psychological parent, rather than be placed with the natural parent, to prevent serious detriment to the welfare of the child.”). A psychological parent may also be awarded visitation of a child under exceptional circumstances. See Stoddard v. Singer, 2021 ND 23, ¶ 25, 954 N.W.2d 696 (stating a visitation award to a non-parent may be made when the non-parent is a psychological parent); McAllister, ¶¶ 16, 23, 27 (affirming the district court's order recognizing stepfather as the child's psychological parent and awarding the stepfather reasonable visitation); Edwards, ¶¶ 2, 10, 17 (affirming district court's award of visitation to a stepfather who had a relationship with the child “at least as great as a psychological parent”); Love v. DeWall, 1999 ND 139, ¶¶ 1, 4, 13, 598 N.W.2d 106 (affirming district court's decision granting paternal grandparents one-month extended summer visitation when the record demonstrates the grandparents were the child's psychological parents during the early stages of his life).

D

[¶24] Monkman argues N.D.C.C. § 14-09.4-02(3) prohibits a foster parent from seeking recognition as a psychological parent. The Hackmanns argue section 14-09.4-02(3) only applies when a nonparent seeks relief under chapter 14-09.4, not when the nonparent claims to be a psychological parent.

[¶25] Section 14-09.4-02(1), N.D.C.C., provides chapter 14-09.4 “applies to a proceeding in which a nonparent seeks custody or visitation” except as otherwise provided in section 14-09.4-02(2). However, N.D.C.C. § 14-09.4-19 states chapter 14-09.4 “does not preclude the recognition of an equitable right or remedy for a psychological parent under law of this state other than this chapter.”

[¶26] Section 14-09.4-19, N.D.C.C., comes from section 20 of the Uniform Act. We interpret uniform laws in a uniform manner. In re Est. of Gleeson, 2002 ND 211, ¶ 7, 655 N.W.2d 69 (looking to the Editorial Board Comments of the Uniform Probate Code to interpret its provisions); see also N.D.C.C. § 1-02-13 (“Any provision in this code which is a part of a uniform statute must be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.”). “When interpreting and applying a uniform law's provisions, this Court may look to comments ‘from the official editorial board for guidance[.]’ ” Meuchel v. Red Trail Energy, LLC, 2024 ND 44, ¶ 9, 4 N.W.3d 203 (quoting Shafer v. Scarborough, 2022 ND 233, ¶ 21, 982 N.W.2d 864).

[¶27] Section 20 of the Uniform Act is an optional provision. A prefatory note to the Uniform Act reads:

The provisions of this act address the legal issues raised by the growing number of children who have a substantial relationship with individuals other than their legal parents. The act ․ provides under a bracketed optional provision that the rights and remedies of this act are not exclusive and do not preclude recognition of an equitable right or remedy for a de facto parent under law of the state other than this act (Section 20).

Unif. Nonparent Custody and Visitation Act, Prefatory Note (Nat'l Conf. of Comm'rs on Unif. State Law 2018).

[¶28] Section 20 of the Uniform Act reads: “Section 20. EQUITABLE RIGHT OR REMEDY. This [act] does not preclude the recognition of an equitable right or remedy for [a de facto parent] under law of this state other than this [act].]” A Legislative Note under section 20 reads:

If state law treats a de facto parent as a nonparent, but recognizes on equitable grounds greater rights for the de facto parent than those established by this act, the state should enact this section.

If state law refers to “psychological parent” or an individual acting “in loco parentis” rather than “de facto parent,” the alternative term should be substituted.

[¶29] The Uniform Act includes a comment to section 20. The comment reads, “The law regarding families is more dynamic than many areas of law. This act is not intended to preclude the development of additional equitable rights and remedies in this area or to nullify previously recognized equitable rights.”

[¶30] The legislature opted to adopt section 20 of the Uniform Act, but replaced “a de facto parent” with “a psychological parent.” By adopting N.D.C.C. § 14-09.4-19, the legislature explicitly acknowledged and declined to nullify this Court's psychological parent precedent and exempted it from N.D.C.C. ch. 14-09.4. The plain language of section 14-09.4-19 demonstrates the legislature did not intend to displace this Court's psychological parent precedent.

[¶31] The district court correctly held N.D.C.C. ch. 14-09.4 is not the “exclusive method for a nonparent to seek custody of or visitation with a minor child.” To hold otherwise would ignore the plain language of N.D.C.C. § 14-09.4-19 and render it inoperative or superfluous.

E

[¶32] The district court found the Hackmanns to be M.R.M.-B.’s psychological parents. Monkman asserts the court erred in finding the Hackmanns to be M.R.M.-B.’s psychological parents because M.R.M.-B.’s parents did not consent to the Hackmanns’ relationship with M.R.M.-B. and because the Hackmanns’ sole relationship with M.R.M.-B. was as her foster parents. The Hackmanns respond that parental consent is not required to establish psychological relationship, Binney voluntarily placed M.R.M.-B. with them, and their sole relationship with M.R.M.-B. was not as her foster parents.

[¶33] We review a district court's factual finding a third party is a psychological parent under the clearly erroneous standard of review. McAllister, 2010 ND 40, ¶ 22, 779 N.W.2d 652; Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D. 1986). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if on the entire evidence we are left with a definite and firm conviction a mistake has been made.” Goetz v. Goetz, 2026 ND 53, ¶ 6, 32 N.W.3d 354 (quoting Fleck v. Fleck, 2023 ND 129, ¶ 13, 993 N.W.2d 534). “Under the clearly erroneous standard, we do not reweigh evidence or reassess witness credibility.” Kolstad v. Claussen, 2025 ND 213, ¶ 22, 29 N.W.3d 613.

1

[¶34] Monkman asserts this Court's “psychological-parent cases rest on voluntary parental consent.” He asserts the Zone's placement of M.R.M.-B. with the Hackmanns as foster parents “was initiated and supervised by the State, not by voluntary parental delegation.”

[¶35] Monkman provides no authority for his assertion this Court's psychological parent precedent rests on parental consent. This Court has never held a natural parent's consent to the third party's relationship with the child is a prerequisite to the third party being found a psychological parent of the child. Although parental consent to the development of the parent-like relationship between the child and the third party may have existed in almost every case where this Court affirmed a third party was a psychological parent, see McAllister, 2010 ND 40, ¶¶ 16, 23, 27, 779 N.W.2d 652 (mother raised the child with his stepfather); Edwards, 2010 ND 2, ¶¶ 2, 10, 777 N.W.2d 606 (the child lived with her mother and stepfather since shortly after her birth); In re D.P.O., 2003 ND 127, ¶ 3, 667 N.W.2d 590 (three days after her daughter was born, the mother, who was incarcerated, placed her daughter with her parents); Simons By & Through Simons v. Gisvold, 519 N.W.2d 585, 586 (N.D. 1994) (for as long as she could remember, the nine-year-old child lived as a family with her father and his second wife); Matter of Guardianship & Conservatorship of Nelson, 519 N.W.2d 15, 16, 20 (N.D. 1994) (father and his girlfriend lived as a family and the girlfriend was the child's primary caretaker); Patzer v. Glaser, 368 N.W.2d 561, 562-63 (N.D. 1985) (natural mother agreed to give custody of six-month-old child to paternal grandparents); Daley v. Gunville, 348 N.W.2d 441, 442 (N.D. 1984) (the mother placed the six-month-old child with the maternal grandmother); Mansukhani v. Pailing, 318 N.W.2d 748, 749 (N.D. 1982) (the mother made the decision to have the children reside with the grandparents when she asked her mother to transport the children to reside with the father, who was living with his parents); In re D.G., 246 N.W.2d 892, 893-96 (N.D. 1976) (mother presumably consented to the child's relationship with her parents, the child having lived with his grandparents since birth, when the mother had custody of the child and resided with her parents), we have never required parental consent to the parent-like relationship as a condition to finding a third party a psychological parent, see Love, 1999 ND 139, ¶¶ 1-2, 598 N.W.2d 106 (district court determined neither biological parent was a fit parent and awarded custody of the child to the paternal grandparents); Goter v. Goter, 1997 ND 28, ¶ 2, 559 N.W.2d 834 (mother left the child with the father's mother and stepfather, who placed the child with the paternal uncle and aunt three months later). The focus of our psychological parent precedent is the existence of exceptional circumstances making it in the child's best interests for the psychological parent to be awarded primary residential responsibility of or visitation with the child. We decline to relegate the best interests of the child to whether the parent voluntarily consented to the relationship between the third party and child.

[¶36] Whether Monkman or Binney consented to the Hackmanns’ relationship with M.R.M.-B. does not determine whether the Hackmanns are M.R.M.-B.’s psychological parents.

2

[¶37] Monkman argues the Hackmanns cannot be M.R.M.-B.’s psychological parents because they were her foster parents. The Hackmanns assert N.D.C.C. § 14-09.4-02(3) only applies when a party seeks relief under N.D.C.C. ch. 14-09.4.

[¶38] This Court has never addressed whether a foster parent of a child may be the child's psychological parent. To date, our cases have only recognized family members (typically grandparents) and stepparents (or the equivalent) as psychological parents. See McAllister, 2010 ND 40, ¶¶ 16, 23, 27, 779 N.W.2d 652 (affirming the district court's order recognizing stepfather as the child's psychological parent and awarding the stepfather reasonable visitation); Edwards, 2010 ND 2, ¶¶ 2, 10, 17, 777 N.W.2d 606 (affirming district court's award of visitation to a stepfather who had a relationship with the child “at least as great as a psychological parent”); In re D.P.O., 2003 ND 127, ¶¶ 1, 12, 17, 667 N.W.2d 590 (affirming district court's finding maternal grandparents established a psychological parent bond with the child, but exceptional circumstances did not require child be placed with the grandparents rather than one of her natural parents); Love, 1999 ND 139, ¶¶ 1, 4, 13, 598 N.W.2d 106 (affirming district court's decision granting paternal grandparents one-month extended summer visitation when the record demonstrates the grandparents were the child's psychological parents during the early stages of his life); Goter, 1997 ND 28, ¶¶ 1-2, 9-10, 12, 559 N.W.2d 834 (affirming district court's finding a psychological parent relationship exists between the child and her paternal aunt and uncle, but reversing and remanding because the court used the wrong test to determine whether the mother's paramount right of custody had been overcome); Simons, 519 N.W.2d at 586-87 (holding district court did not clearly err in granting custody to the natural mother instead of the father's second wife, a psychological parent, when there was no evidence the child would suffer harm or detriment by being placed in the natural mother's custody); Nelson, 519 N.W.2d at 16, 20 (concluding deceased father's girlfriend, whom the father lived with and who acted as the child's primary caretaker, was the child's psychological mother and should be appointed guardian of the child); Patzer, 396 N.W.2d at 743-44 (holding district court's finding paternal grandparents were not child's psychological parents is clearly erroneous, but affirming award of custody to natural mother because exceptional circumstances did not warrant placement of the child with the grandparents rather than with the mother); Daley, 348 N.W.2d at 442, 447 (vacating the district court's order and remanding with directions that the court enter an order placing custody of the child with her grandmother, who had cared for the child for the past five and a half years); Mansukhani, 318 N.W.2d at 748-49, 755-56 (reversing the district court's judgment placing custody of the children with their mother, and remanding with directions the court enter judgment placing custody of the child with the paternal grandparents, who “had provided the children's care and support for more than three and one-half years and the psychological parent relationship with the children had been established”); In re D.G., 246 N.W.2d at 893-96 (reversing district court's transfer of custody to the father and denial of custody to the maternal grandparents when the child had lived with his grandparents since birth).

[¶39] As previously explained, “psychological parent” is a judicially recognized doctrine. The legislature explicitly adopted this Court's “psychological parent” precedent when it passed N.D.C.C. § 14-09.4-19. At that time, as shown above, only family members and stepparents had been recognized as psychological parents. The issue is whether this Court should judicially extend its psychological parent doctrine to include foster parents.

[¶40] “We have stated on numerous occasions that public policy is declared by the legislature's action, and that the legislature is much better suited than the courts to identify or set public policy in this state.” Potts v. City of Devils Lake, 2021 ND 2, ¶ 15, 953 N.W.2d 648. By adopting N.D.C.C. § 14-09.4-02(3), the legislature declared North Dakota's public policy regarding whether a nonparent may maintain a proceeding for residential responsibility of or visitation with a child “solely because the nonparent served as a foster parent of the child.” The legislative intent of section 14-09.4-02(3) is clear.

[¶41] The prefatory note to the Uniform Act explains that “under an optional (bracketed) provision, a nonparent may not maintain a proceeding under this act solely on the basis of having served as a foster parent.” Unif. Nonparent Custody and Visitation Act, Prefatory Note. A Legislative Note to section 3 of the Act, codified as N.D.C.C. § 14-09.4-02(3), reads: “Subsection (c) is in brackets to give the enacting state the option of not including this provision if state law recognizes the right of a former foster parent to seek custody or visitation with a child.” Id., Section 3, Legislative Note. A comment regarding subsection (c) reads:

Subsection (c), which is bracketed, is an optional provision. If a state wishes to exclude coverage of the act to nonparents whose claim for custody or visitation is based solely on that individual's service as a foster parent, the brackets should be removed and the section included. Under this approach, if the individual has an alternate basis for seeking relief, such as a preexisting substantial relationship with the child, that individual could still seek custody or visitation under the act. For example, if a child is removed from the parent's home and is placed with the child's aunt and uncle with whom the child had a preexisting substantial relationship, that substantial relationship could serve as a basis for obtaining custody or visitation (after the foster placement has concluded).

Id., Section 3, cmt.

[¶42] By including the bracketed language in subsection (c) of section 3 of the Uniform Act, the legislature indicated North Dakota state law does not recognize the right of a former foster parent to seek residential responsibility or visitation with a child. Unif. Nonparent Custody and Visitation Act, Section 3, Legislative Note. We decline to judicially expand our psychological parent precedent contrary to the express policy declared by the legislature when it adopted section 14-09.4-02(3). See N.D.C.C. § 1-01-06 (“In this state there is no common law in any case in which the law is declared by the code.”); McAllister, 2010 ND 40, ¶ 29, 779 N.W.2d 652 (Crothers, J., concurring) (expressing concern about judicially recognized third-party custody and visitation claims and “the judiciary being pulled deep into the legislature's policymaking domain”).

[¶43] A nonparent whose relationship with the child is based “solely” on the nonparent serving as a foster parent of the child may not be deemed a psychological parent.

3

[¶44] The Hackmanns argue N.D.C.C. § 14-09.4-02(3) only prohibits a nonparent from seeking residential responsibility or visitation of a child “solely because the nonparent served as a foster parent of the child.” They assert they did not seek residential responsibility exclusively because a foster placement existed.

[¶45] The comment to section 3 of the Uniform Act recognizes a child may have a substantial relationship with a nonparent prior to the child being placed in the nonparent's home. “For example,” the comment reads, “if a child is removed from the parent's home and is placed with the child's aunt and uncle with whom the child had a preexisting substantial relationship, that substantial relationship could serve as a basis for obtaining custody or visitation (after the foster placement has concluded).” Unif. Nonparent Custody and Visitation Act, Section 3, cmt.; see also In re Custody of A.F.J., 179 Wash. 2d 179, 182, 188, 190, 314 P.3d 373, 374-75, 377-78 (2013) (holding, in a 5-2 decision, that mother's partner who helped parent the child, who later was the child's foster parent, could be the child's de facto parent because, while “a de facto parentage relationship will not arise out of a foster care relationship, foster parent status itself is no bar”).

[¶46] Here, the Hackmanns were M.R.M.-B.’s foster parents for approximately two years (March 25, 2022 to March 11, 2024). The record does not indicate, and they have not argued, they had “a preexisting substantial relationship” with M.R.M.-B. prior to serving as her foster parents. The Hackmanns filed their petition to establish residential responsibility, parenting time, and child support on March 12, 2024, the day after M.R.M.-B. was returned to Monkman and Binney. Thus, under the facts of this case, a court could only find the Hackmanns’ relationship with M.R.M.-B. was based “solely” on them serving as M.R.M.-B.’s foster parents; they had no relationship with M.R.M.-B. except as her foster parents.

[¶47] The Hackmanns appear to argue they had a non-foster parent relationship with M.R.M.-B. because Binney voluntarily placed M.R.M.-B. back in their care on March 22, 2024. However, the Hackmanns filed their petition prior to that date. Moreover, they filed their renewed motion to intervene and motion for temporary relief on April 19, 2024, less than thirty days after Binney placed M.R.M.-B. back in their care. Assuming a post-foster parent relationship can be used to establish a psychological parent relationship with a child, the Hackmanns’ post-foster parent relationship with M.R.M.-B. of under thirty days is not, as a matter of law, substantial and was not sufficient time to develop a psychological parent relationship. See Osterkamp v. Stiles, 235 P.3d 178, 187 (Alaska 2010) (holding the time a nonparent served as foster parent may not be considered for purposes of establishing psychological parent status).

[¶48] Except for the foster parent relationship, M.R.M.-B. was not in the Hackmanns’ actual physical custody for a sufficient period to develop a psychological parent relationship. Thus, the Hackmanns’ claimed psychological parent status was solely because they served as M.R.M.-B.’s foster parents. The district court's finding the Hackmanns were M.R.M.-B.’s psychological parents when their relationship with her was based solely on them serving as her foster parents is clearly erroneous.

IV

[¶49] Monkman argues the district court erred in limiting his parenting time to supervised parenting time and in calculating his child support. Our decision that the district court erred in finding the Hackmanns were M.R.M.-B.’s psychological parents does not mean Monkman will be granted residential responsibility or unsupervised parenting time on remand. Thus, we address these issues because they are likely to arise on remand. Killoran v. Kaler, 2025 ND 64, ¶ 16, 18 N.W.3d 867 (stating we will address an issue because it is likely to arise on remand); Wollan v. Innovis Health, LLC, 2024 ND 169, ¶ 15, 11 N.W.3d 1 (stating we will address the remaining issues to the extent they are likely to arise on remand).

A

[¶50] Monkman argues the district court erred in finding his unsupervised parenting time with M.R.M.-B. presents a likelihood of serious harm or detriment to M.R.M.-B. and would likely endanger M.R.M.-B.’s physical and emotional health. A district court's parenting time decision is a finding of fact and will not be reversed unless it is clearly erroneous. Vetter v. Vetter, 2026 ND 36, ¶ 9, 31 N.W.3d 662, reh'g denied (Mar. 11, 2026).

[¶51] We have stated “visitation between a non-custodial parent and a child is presumed to be in the child's best interests and that it is not merely a privilege of the non-custodial parent, but a right of the child.” Taylor v. Taylor, 2022 ND 39, ¶ 16, 970 N.W.2d 209 (quoting Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896). However, “visitation with a noncustodial parent may be curtailed or eliminated entirely if it is likely to endanger the child's physical or emotional health.” Id. (quoting Wilson v. Ibarra, 2006 ND 151, ¶ 10, 718 N.W.2d 568). “Visitation should be restricted only upon a showing by a preponderance of the evidence that unrestricted visitation is likely to endanger the child's physical or emotional health.” Id.

[¶52] The district court made detailed and extensive findings regarding the likelihood of serious harm or detriment to M.R.M.-B. if Monkman was awarded primary residential responsibility or unsupervised parenting time. In addition to lay testimony, the court considered unopposed expert testimony, testimony the court found credible.

[¶53] The district court found many concerns with Monkman's care of M.R.M.-B. For example, the court found, very shortly after her birth, “M.R.M.-B. suffered a sublingual frenulum evulsion. M.R.M.-B. was in Aaron's care at the time, however, Aaron could not provide an explanation for the injury. This was a sentinel injury, meaning an injury that is poorly explained and is a sign of possible abuse, mistreatment of neglect of the child.” Dr. Santa Bartholomew, a board-certified pediatrician, with a sub-specialty in pediatric critical care, testified “this should have been classified as a non-accidental injury to the child. A newborn child could not cause such an injury to herself and the injury could not occur accidentally to a non-mobile child. As such, another individual must have caused this injury.” Later, the court stated, “[t]he injuries that M.R.M.-B. received while in Aaron's care are concerning. As explained by the Hackmann's expert witness, the non-accidental injuries are concerning because they could not have happened in an accidental manner and happened at a time the parent should be protecting the child.” The court stated, “Some of M.R.M.-B.’s injuries were not explained and Aaron provided a non-violent explanation for others.”

[¶54] The district court noted testimony regarding Monkman's inability to care for himself and for M.R.M.-B. The court explained Monkman's “inability to care for himself is evidence of his inability to care for a young child.” The court also found Monkman “is currently living with his parents in their home. Aaron has lived with his parents his entire life, other than the 6 month period during which he, Kristin and M.R.M.-B. lived in Arizona.” The court explained Monkman “testified that he would like to move out of his parent's home and get his own apartment sometime in the next year or two.” It further explained, “The Court does not believe that this is likely to happen. If Aaron lived away from his parents, the Court does not believe he would be able to provide adequate care for M.R.M.-B.”

[¶55] The district court considered the testimony of Destrie Overmoe, a licensed social worker with the Cass County Human Service Zone, who testified the reason M.R.M.-B. was removed from Monkman and Binney's care was due, in part, to bruising on M.R.M.-B.’s face and arm. “The Cass County Human Service Zone was able to substantiate the allegation of non-accidental bruising.” The court explained:

Destrie Overmoe was closely involved in the removal of M.R.M.-B. from Aaron and Kristin, her placement with the Hackmanns and her eventual return to Aaron and Kristin. Over that time, Destrie was able to observe the parental capacity of the parties. Destrie Overmoe does not believe that Aaron or Kristin have the ability to provide adequate care for M.R.M.-B. or to meet the child's physical needs.

[¶56] Dr. Bartholomew opined M.R.M.-B. was “chronically neglected” during the first two years of her life while in the care of Monkman and Binney. The district court addressed M.R.M.-B.’s severe developmental delays when she was removed from Monkman and Binney and placed with the Hackmanns:

Because of M.R.M.-B.’s obvious developmental delays, the Hackmann's had M.R.M.-B. evaluated at Pediatric Partners. In April 2022, M.R.M.-B. was assessed and determined to be profoundly developmentally delayed. Although M.R.M.-B. was over two years old at this time, she had the mental development of a 9 month old. M.R.M.-B. was non-verbal, meaning her language skills were significantly delayed for her age. Her cognition, fine motor skills, gross motor skills, behavior and social-emotional development were significantly delayed. M.R.M.-B. was unable to express her needs for food or sleep or her desire to engage in an activity or for comfort. In the mornings, M.R.M.-B. would wake, but would not cry or call out to adults to make her needs known. Instead, she would simply remain in bed until someone came to get her. At night, she would quietly cry herself to sleep, rather than express a desire to read a book, talk or receive comfort. These observations seem to be consistent with a child who has been neglected in the past. Pediatric Partners recommended speech therapy, occupational therapy and physical therapy.

[¶57] The Hackmanns returned M.R.M.-B. to Monkman and Binney on March 11, 2024. The district court made detailed findings regarding the Hackmanns’ significant efforts to make the transition as easy as possible on M.R.M.-B. After noting Monkman “had M.R.M.-B. in his care from March 11, 2024, to March 22, 2024,” the court found:

Despite the efforts that the Hackmanns put into easing the transition, this transition in care was unnecessarily difficult on M.R.M.-B. The Hackmanns provided a detailed list of M.R.M.-B.’s treatment providers. A continuity of care was critical given M.R.M.-B.’s special developmental needs. However, Aaron ignored the list and did not take M.R.M.-B. to her scheduled appointments․

Aaron also changed M.R.M.-B.’s day care routine. The Hackmanns offered to continue to pay for the Small Wonders Day Care, where M.R.M.-B. had established care and was receiving speech therapy services. A continuation of these speech therapy services at the day care with which M.R.M.-B. was already familiar would have been a great benefit for the child and would have saved Aaron money. Despite this gracious offer by the Hackmanns, Aaron refused. Instead, he sought the services of an individual who lived in the neighborhood, named Kristi. During the trial, neither Aaron nor his mother could provide the Court with Kristi's last name. There does not seem to [have] been much thought given to using the Small Wonder's day care or how the change in day care would impact M.R.M.-B.

․

According to Jeanne Monkman, Aaron's mother, Aaron was responsible for M.R.M.-B.’s every day needs and M.R.M.-B. did not have any problems eating or sleeping while in Aaron's care at this time. The Court did not find this testimony credible. The Court finds it was more likely that M.R.M.-B. continued suffering from problems with eating and sleeping while in Aaron's care and that Aaron and Jeanne Monkman did not recognize and appreciate the problems with which the child was suffering.

․

From March 2024 to the date of the evidentiary hearing, M.R.M.-B. has regressed some in her development. The Hackmanns believe the regression is attributable to the time that M.R.M.-B. is spending with Kristin and Aaron and the disruption in her routine. M.R.M.-B. seems to regress immediately following Aaron's or Kristin's parenting time.

[¶58] The district court also made findings regarding Monkman not consistently exercising his parenting time and his lack of involvement in M.R.M.-B.’s therapy:

From March 22, 2024 to the date of the evidentiary hearing, Aaron has had supervised parenting time with M.R.M.-B. at Rainbow Bridge in Moorhead, MN. The Court's interim order provided Aaron with up to 2 weekly parenting time sessions per week. Aaron has never exercised two sessions in a single week. Aaron has exercised approximately 2 to 3 sessions per month since March 2024․

From March 2024 to the date of the evidentiary hearing, Aaron has not spoke[n] to any of M.R.M.-B.’s current treatment and therapy providers․ Aaron has never attended any of M.R.M.-B.’s therapy or medical appointments of any kind. From March 2024 to the date of the evidentiary hearing, Aaron has not purchased any clothing for the child․

[¶59] Next, the district court considered the expert opinions of Dr. Bartholomew. The court found Dr. Bartholomew's opinions compelling:

Dr. Bartholomew conducted a review of a number of documents related to the case, formed an opinion and issued a report regarding this case. Dr. Bartholomew's expert opinions are compelling. Dr. Bartholomew opined that M.R.M.-B. is not safe in either Aaron's or Kristin's home and that neither Aaron nor Kristin can provide adequate care to the child. Dr. Bartholomew believes that M.R.M.-B. will suffer harm in the care of the Kristin or Aaron. Dr. Bartholomew opined, “to a reasonable degree of medical certainty that this child is medically and psychologically safest with her foster and psychological family, the Hackmanns and this environment provides M.R.M.-B. the best opportunity for achieving her best developmental outcome and healing from her traumatic first two years of life.” Dr. Bartholomew opined that Hackmanns are M.R.M.-B.’s psychological parents and the Hackmann's home is M.R.M.-B.’s psychological home. Dr. Bartholomew recommends that M.R.M.-B. not have any contact with Aaron and have limited contact with Kristin.

[¶60] Finally, the district court considered M.R.M.-B.’s developmental needs and Monkman's ability to provide for them:

At the present, M.R.M.-B. has improved greatly, but still has some developmental delays. M.R.M.-B. continues to suffer from speech issues, emotional and other developmental issues, which can only be addressed through continued treatment and therapy. The developmental needs of M.R.M.-B. are greater than other children of a similar age. The Court finds the Hackmanns are better suited to address the child's developmental needs in the future. The Hackmanns have shown an ability to arrange for therapy and treatment providers and to ensure M.R.M.-B.’s regular attendance at these important appointments. The Hackmanns have shown a desire and ability to assist M.R.M.-B. at home with these issues as well․ Aaron has a very limited ability to provide for M.R.M.-B.’s developmental needs. He lacks a basic understanding of M.R.M.-B.’s developmental needs. During the trial, he was not able to explain the child's developmental needs or identify her current treatment providers. During the 11 day period from March 11 to March 22, Aaron failed to take M.R.M.-B. to a single appointment.

[¶61] The district court's finding there is a likelihood of serious harm or detriment to M.R.M.-B. if Monkman is awarded primary residential responsibility or unsupervised parenting time is supported by the evidence and not based on an erroneous view of the law. The court did not err in limiting Monkman's parenting time to supervised parenting time.

B

[¶62] Monkman asserts ordering him to bear the costs for supervised parenting time, to share medical expenses, and not to be allowed a tax exemption, in addition to his child support, is inequitable. Monkman asserts the court should have considered whether a downward deviation was warranted. “Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.” Kolstad, 2025 ND 213, ¶ 17 (quoting Woelfel v. Gifford, 2020 ND 197, ¶ 18, 948 N.W.2d 814).

[¶63] The amount of child support calculated using the North Dakota Child Support Guidelines is presumed to be the correct amount. N.D. Admin. Code § 75-02-04.1-09(1). However, a party may rebut the presumptive amount by establishing, by a preponderance of the evidence, “that a deviation from the guidelines is in the best interest of the supported [child] and” one criterion provided in N.D. Admin. Code § 75-02-04.1-09(2) is met. N.D. Admin. Code § 75-02-04.1-09(2); see also Verhey v. McKenzie, 2009 ND 35, ¶ 14, 763 N.W.2d 113 (“The exclusive list of the criteria for rebutting the presumption is listed at N.D. Admin. Code § 75-02-04.1-09(2).” (quoting Hanson v. Hanson, 2005 ND 82, ¶ 28, 695 N.W.2d 205)). “The party requesting a deviation from the presumptive amount of support under the guidelines bears the burden of proof.” Schwalk v. Schwalk, 2014 ND 13, ¶ 22, 841 N.W.2d 767. “Courts may deviate from the guideline amount when a party urging deviation shows, by a preponderance of the evidence, that deviation is appropriate. However, when courts deviate from the guidelines, that deviation must be supported by specific findings that the presumption under the guidelines has been rebutted.” Edison v. Edison, 2023 ND 141, ¶ 38, 994 N.W.2d 151 (quoting Bye v. Robinette, 2015 ND 276, ¶ 4, 871 N.W.2d 432). The district court has discretion in exercising its power to grant a downward deviation. Schwalk, ¶ 22.

[¶64] Monkman did not request the district court make a downward deviation to his child support amount. On appeal, Monkman cites N.D. Admin. Code § 75-02-04.1-09(2) for the proposition a court may deviate from the presumptive child support amount. However, he provides no argument or analysis regarding what subdivision of section 75-02-04.1-09(2) authorized the court to deviate from the presumptive child support amount. Monkman provides no authority to support the proposition the court could decrease his child support amount because of the costs for supervised parenting time, shared medical expenses, or not being allowed to take a tax exemption.

[¶65] The district court did not abuse its discretion when it did not consider a downward deviation where no deviation was requested.

V

[¶66] The Hackmanns argue this appeal is frivolous and request attorney's fees. Having reversed the district court, we deny the Hackmanns’ request for attorney's fees on appeal.

VI

[¶67] We have considered Monkman's other arguments and conclude they are unnecessary for our decision or are without merit. We reverse the amended judgment, deny the Hackmanns’ request for attorney's fees, and remand to the district court for further proceedings consistent with this opinion.

FOOTNOTES

1.   Section 14-09.4-02(2), N.D.C.C., provides:This chapter does not apply to a proceeding:a. Between nonparents, unless a parent is a party to the proceeding;b. Pertaining to custody of or visitation with an Indian child as defined in the Indian Child Welfare Act of 1978 [25 U.S.C. 1903(4)], to the extent the proceeding is governed by the Indian Child Welfare Act of 1978 [25 U.S.C. 1901 through 196]; andc. Pertaining to a child who is the subject of an ongoing proceeding in any state regarding:(1) Guardianship of the person; or(2) An allegation by a government entity that the child is abused, neglected, dependent, or otherwise in need of care.

Bahr, Justice.

[¶68] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Daniel J. Crothers, S.J.[¶69] The Honorable Daniel J. Crothers, S.J., sitting in place of Friese, J., disqualified.