She reports that the child cries before leaving for visitation with Bond, but Valek attributes this response to a reluctance to interrupt ongoing play rather than negative feelings about Bond. Valek states that as the custodial parent and primary disciplinarian, she would not be surprised if the child were occasionally upset with her, but that her relationship with the child is positive, the child has never been neglected or abused, and that neither Valek nor her husband uses drugs or abuses alcohol. Valek provided affidavits from her husband, family members, friends, and the child's day care provider attesting to the close and loving relationship between Valek and the child. Valek stated that she was not informed that the child was being evaluated by a psychologist and had no opportunity to address any of the psychologist's stated concerns. In denying Bond's request for an evidentiary hearing on his motion to modify custody, the district court found that neither Bond's affidavits nor the psychologist's letter establish a prima facie case for modification and thus an evidentiary hearing is not warranted.
Bond appeals the denial of the hearing.
On a motion for modification of custody, the district court should grant an evidentiary hearing if the affidavits submitted by the moving party, taken as true, establish a prima facie case. To establish a prima facie case, the moving party must demonstrate a change of circumstance in the child's environment that endangers the child's physical or emotional health or emotional development, that a modification would be in the child's best interests, and that the advantage of a change will outweigh any harm likely caused by the change. We review the district court's decision to deny an evidentiary hearing under an abuse of discretion standard. Bond maintains that the psychologist's report and his affidavits present prima facie evidence requiring a hearing because his affidavit shows that the child is frequently in his care and comfortable with his home environment, the psychologist's report indicates that the child's mental health is endangered by her current placement, and the child has stated her preference to live with Bond. We disagree that the district court erred in concluding that the evidence was deficient.