Here’s what you should know if you’re engaged in a child custody case in North Dakota.
- What are the Types of Child Custody in North Dakota?
- Determining Child Custody in North Dakota
- What is North Dakota’s Best Interests of the Child Standard?
- What to Know About Parenting Plans
- How Do I Modify a North Dakota Custody or Visitation Order?
- North Dakota Child Custody FAQs
What are the Types of Child Custody in North Dakota?
North Dakota judges decide custody based on what they think is in your child’s best interest. The judge will look at several factors to decide a case, or parents can create a parenting plan and present it to the court for approval.
A custody arrangement will address physical and legal custody, also called “residential responsibility” and “decision-making responsibility,” in North Dakota.
A parent with “residential responsibility” over the child is the parent who primarily lives with the child and is also referred to as the “custodial parent.” The other parent is called the “noncustodial parent” and is usually awarded ample parenting time with the child but won’t necessarily live with the child.
A parent with “decision-making responsibility” can make major educational, medical, legal, and religious decisions on the child’s behalf. Most custody cases share decision-making responsibilities, but the custodial parent has the final say when parents can’t agree on a matter involving the child, the custodial parent has the final say.
Parents with joint physical custody will spend substantial amounts of time with the child, which is the court’s preference. Parents with joint legal custody share equally in the upbringing of their children and major decisions together.
Sometimes, a judge will award sole custody rights to the child. A parent with sole physical custody lives primarily with the child, but the other parent is still entitled to regular and frequent visits with the child. Sole legal custody means one parent makes all major decisions on the child’s behalf alone and without input from the child’s other parent.
Unless a child’s safety is at risk, North Dakota child custody laws indicate a preference for both parents to be actively involved in a child’s life and to have a strong relationship with the other parent.
Both parents are entitled to regular visitation with their children. A court can award a parent more visitation, but not less than the state’s minimum guideline amount.
Even when one parent has a history of domestic violence or substance abuse, a judge will rarely cut off that parent’s visitation entirely. Instead, a judge might order supervised visitation. This means a friend, relative, or court-appointed worker will be present during the visits.
When a parent is in the military, the judge cannot consider a parent’s past deployment or possible future deployment when determining the best interests of the child, although it may impact various custody details.
Read More: How to File for Divorce in North Dakota
Determining Child Custody in North Dakota
You can file for custody in North Dakota if the state is your child’s “home state.” A home state is generally the last state where your child has lived with a parent or a person acting as a parent for at least six months. If your child is less than six months old, then your child’s home state is the state where they have lived since birth.
How you file for custody in North Dakota will depend on the particulars of your situation. According to state divorce laws, if the parents are married and are seeking a divorce, one or both of the parents usually file for custody as part of a divorce action. If the parents were never married or are not getting divorced, either parent can file for custody in district court.
Be sure to check with a lawyer or the clerk of court in your area to see if there are any special rules or steps based on where you live. All the forms you need are on the North Dakota Courts website, but you should be able to get all the forms you need at your local courthouse.
After you file your paperwork, a judge may set a date for a hearing, mediation, or another action to help decide custody. Mediation is when a neutral third party sits down with the parties and tries to help them agree. The mediation proceedings will be private, but the mediator cannot keep you from bringing your lawyer.
If you and the other parent can agree on a parenting plan, a judge will usually sign your agreement, making it an official court order. If not, the case may go to trial in front of a judge.
To determine the child’s best interests, a judge might assign an investigator or a guardian ad litem to the case. This person will conduct interviews, gather evidence, and present findings to the judge, who will use that information to make a fair and just decision.
- Judges will take into account many factors to reach this decision. The factors include:
- The love, affection, and other emotional ties between the parents and the child
- The ability of each parent to nurture the child and give their love, affection, guidance, adequate food, clothing, shelter, medical care, and a safe environment;
- The child’s developmental needs and the ability of each parent to meet those needs, both now and in the future
- The stability of each parent’s home environment
- The impact of extended family
- The length of time the child has lived in each parent’s home;
- The desirability of wanting to keep the child’s home and community the same as it has been
- Each parent’s desire to encourage a close and continuing relationship between the other parent and the child
- How moral the judge thinks each parent is and how that impacts the child
- The mental and physical health of the parents
- The judge may consider the child’s preference if the child is mature enough to decide what they want. The judge must also consider whether there are any influences that have affected the child’s preference
- Evidence of domestic violence
- The interaction between the child and anyone who lives in or frequently comes to the parent’s household. The judge will also consider that person’s history of abusing others or causing others to fear abuse;
- If either parent made false allegations of child abuse against the other parent
- Any other factors the judge thinks might be relevant to a particular child custody case.
Read More: Counseling Children Through Divorce
What is North Dakota’s Best Interests of the Child Standard?
The child’s best interests are always placed above all other considerations in a custody case. Parents’ desires and other factors play a lesser role in determining the outcome of a custody arrangement in North Dakota.
Read More: Divorcing an Abusive Husband (What Every Woman Needs to Know)
What to Know About Parenting Plans
Parenting plans are detailed agreements that provide specific instructions about a child’s physical and legal custody. Courts prefer that parents develop a plan on their own or work with a mediator to develop an acceptable agreement. However, parents don’t always agree, and when this happens, the court will step in a make parenting plan decisions instead.
Some of the issues that a parenting plan typically addresses will include:
- Physical custody details, including the number of overnight visits for each parent.
- Legal custody and how those responsibilities are allocated between parents.
- How are tuition, medical costs, school activities, hobbies, and recreational activities expenses handled?
- Child support payment amounts and recourse if a parent falls behind.
- Holiday and school break schedules
- Vacation and travel approval and advance notifications
- The manner of exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- How will a child communicate with both parents
- How is communication between parents handled?
- Contact with other family members and friends
- Access to records and information
- Children’s use of technology and online activities
- How to address child discipline and mental health issues
- Guidelines when a new partner is involved
- Grooming and dress guidelines (extreme haircuts, make-up, etc.)
- Drinking or drug use in the presence of the children
Remember that when the court approves a parenting plan, it becomes an official legal document that each parent must follow.
When terms of the parenting plan are not followed, the other parent can file a motion with the court to compel enforcement unless doing so would put the child in harm. Otherwise, parents who do not follow the terms of the agreement run the risk of fines, jail time, or a change in the terms of the plan.
Read More: Laws Governing Military Divorces
How Do I Modify a North Dakota Custody or Visitation Order?
Family circumstances usually change over time. When this happens, and the change is substantial enough to impact the child’s best interests, either parent can file a motion with the North Dakota courts to modify child custody. What worked best in the past may no longer be optimal.
Substantial changes can include one parent’s major medical crisis, a distant relocation, evidence of drug or alcohol abuse, domestic violence, or other similar events.
If you want to change which parent has primary residential responsibility, you usually have to wait two years after an order was issued to file a motion. However, there are exceptions to this two-year rule. You can file before two years have passed if you and the other parent can agree that a modification can be filed before the two years.
The other instance is when a judge determines:
- There has been persistent and purposeful denial or interference with parenting time;
- The child’s present environment may endanger the child’s physical or emotional health or harm the child’s emotional development.
- The child has been living with the parent who does not have “primary residential responsibility” for more than six months.
If any of these apply, and the judge believes it would be in the child’s best interests to change primary residential responsibility, the judge can do so.4
To change the custody order, you must usually file a motion with the court and have the papers served on the other parent. The other parent can file a response or objection. If the judge finds that the minimum requirements to change a custody order have been met, a hearing will determine whether or not the modification should occur.
Read More: How to Prepare for a Divorce Trial
North Dakota Child Custody FAQs
Can I move to another state with my children when a custody order is in place?
If you have joint custody provisions in your agreement, you cannot move to another state unless the other parent consents or you get permission from the judge.
You do not need the judge’s permission to move out of state if the other parent has not used their parenting time for one year or more or has moved to another state more than 50 miles from your home.
Some custody orders may have specific terms about moving out of state, so make sure of what the current agreement states before taking action.
If you take your child out of state and it violates the other parent’s parenting time rights in your custody order, you may be at risk of committing a class C felony crime.
What are parental rights to access information and records related to the child?
Each parent has the right to:
- Access and get copies of the child’s educational, medical, dental, religious, insurance, and other records or information
- Attend teacher or school conferences;
- Reasonable access to the child by telephone, mail, email, or other electronic means.
What are each parent’s responsibilities for communicating with the other parent?
Both parents must inform the other parent as soon as reasonably possible of a serious accident or illness for which the child receives health care treatment, including the name of the doctor, clinic, or hospital. They must also stay up to date and immediately inform the other parent of changes to telephone numbers and address, and keep the other parent informed of the name and address of the school the child attends.
A judge can restrict or remove any rights or responsibilities listed above, especially when domestic violence is an issue.
Can a nonparent get custody or visitation?
North Dakota law assumes that a parent’s decision about allowing contact or not allowing contact between their child and a nonparent is in the best interest of the child. A judge can order custody or visitation to a nonparent, even if the parent disagrees, as long as the nonparent proves that such an order is in the best interest of the child and proves any of the following:
- The nonparent is a “consistent caretaker” for the child, including having lived with the child for 12 months or more.
- The nonparent has a “substantial relationship” with the child to the point where denial of contact would harm the child.
- The nonparent made day-to-day decisions about the child on their own or with the person who had physical custody of the child
- Established a “bonded and dependent” relationship with the child, either with the consent of the parent or without the parent’s consent if the parent is not willing or able to function as a parent, such as due to substance abuse or criminal activity.
