Filed 5/1/15 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2015 ND 109

Ashlie N. Carnes, Plaintiff and Appellant

v.

Robin S. Snider, Defendant and Appellee

No. 20140345

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

AFFIRMED.

Per Curiam.

Lynn M. Boughey, Box 836, Bismarck, ND 58502-0836, for plaintiff and appellant.

Thomas M. Jackson, 418 E. Rosser Ave., Ste. 320, Bismarck, ND 58501, for defendant and appellee.

Carnes v. Snider

No. 20140345

Per Curiam.

[¶1] Ashlie Carnes appealed from a district court judgment awarding her and Robin Snider joint residential responsibility over their minor child.  She argues the district court’s findings were clearly erroneous because they could only be explained through application of a presumption against awarding her primary residential responsibility based on her sexual orientation and same-sex marriage.  In Jacobson v. Jacobson , we held that, “because of the mores of today’s society, because [the mother] is engaged in a homosexual relationship in the home in which she resides with the children, and because of the lack of legal recognition of the status of a homosexual relationship, the best interests of the children would be better served by placing custody of the children with [the father].”  314 N.W.2d 78, 82 (N.D. 1981).  We have since held that, “[t]o the extent Jacobson can be read as creating such a presumption, it is overruled.”   Damron v. Damron , 2003 ND 166, ¶ 9, 670 N.W.2d 871.  We affirm under N.D.R.App.P. 35.1(a)(2) and (7).

[¶2] Gerald W. VandeWalle, C.J.

Carol Ronning Kapsner

Lisa Fair McEvers

Daniel J. Crothers

William A. Herauf, D.J.

[¶3] The Honorable William A. Herauf, D.J., sitting in place of Sandstrom, J., disqualified.