The North Dakota Supreme Court reversed a district court's order denying a father's motion to modify a foreign visitation order in a complex cross-border custody case involving the death of the child's Canadian mother.
In *Wardner v. Porath, et al.* (2025 ND 228), the high court issued a "REVERSED AND REMANDED WITH INSTRUCTIONS" ruling in favor of Kyle Patrick Wardner, who appealed the McLean County District Court's denial of his modification request. Justice Bahr authored the opinion for the court.
The case stems from a long-distance relationship between Wardner, a North Dakota resident, and Tamara Porath, who lived in Canada with her parents Duane and Patricia Porath and sister Rebecca Porath. The couple never married but had a child, E.M.M.W., born in 2017.
During their relationship, Tamara Porath would bring the child to North Dakota for visits, and Wardner would occasionally travel to Canada. This arrangement continued until November 2020, when Tamara Porath passed away, fundamentally altering the family dynamics and custody arrangements.
Following Tamara Porath's death, Rebecca Porath filed an application in Canadian court to become E.M.M.W.'s legal guardian. Wardner opposed this application, setting the stage for a cross-border legal battle over the child's care and custody.
In August 2021, the Canadian court entered an interim order that awarded Wardner primary residential responsibility. As a result of this order, E.M.M.W. came to live with Wardner in North Dakota, marking a significant shift in the child's living arrangements.
The parties worked to establish a more permanent arrangement, and in May 2022, Wardner and Rebecca Porath stipulated to the Canadian court entering a final order that addressed both parenting time and the Poraths' visitation time with E.M.M.W. This order represented a negotiated resolution to the immediate custody questions.
To ensure enforceability in North Dakota, Wardner registered and filed the Canadian order with the district court in May 2024, following proper legal procedures for recognizing foreign court orders.
However, circumstances apparently changed, leading Wardner to file a motion in June 2024 asking the district court to modify the Canadian order. The specific reasons for the requested modification were not detailed in the available court documents.
The McLean County District Court, presided over by the Honorable David E. Reich, held a hearing on Wardner's motion in January 2025. Both Wardner and the Poraths testified at the hearing, presenting their respective positions on the proposed modifications to the visitation arrangement.
After considering the testimony and evidence presented, the district court denied Wardner's motion to modify the foreign visitation order. The court's reasoning for the denial was not specified in the Supreme Court's opinion.
Wardner, represented by attorney William C. Black of Bismarck, appealed the district court's denial to the North Dakota Supreme Court. The Poraths were represented by Patrick W. Waters, also of Bismarck.
The Supreme Court's decision to reverse and remand with instructions indicates that the high court found legal error in the district court's handling of the case. While the specific instructions to the lower court were not detailed in the available portion of the opinion, the "with instructions" language suggests the Supreme Court provided specific guidance on how the case should be resolved.
This case highlights the complex legal issues that arise in international child custody disputes, particularly when one parent dies and extended family members seek to maintain relationships with the child across international borders. The case involves multiple jurisdictions, with the original custody order coming from a Canadian court but enforcement and modification proceedings occurring in North Dakota.
The intersection of international family law, interstate custody recognition, and post-death custody arrangements creates a challenging legal landscape. Courts must balance the rights of surviving parents, the interests of extended family members who have formed relationships with the child, and the best interests of the child involved.
The case also demonstrates the importance of proper procedures for registering foreign court orders in domestic courts to ensure enforceability and the ability to seek modifications when circumstances change.
The Supreme Court's reversal suggests that the district court may have applied incorrect legal standards or failed to properly consider relevant factors in denying the modification request. The remand with instructions should provide clarity for how similar cases should be handled in the future.
The case will now return to the district court, which must follow the Supreme Court's instructions in reconsidering Wardner's motion to modify the visitation order. The outcome could affect not only this family but also establish precedent for how North Dakota courts handle similar international custody modification requests involving deceased parents.