North Dakota Child Custody

Physical custody, which is labeled “residential responsibility” in North Dakota, depicts where the children physically reside most the time, and which parent(s) provide their daily care.  There are a few different types of residential responsibility:

• “Primary residential responsibility” describes a situation where the children live with one parent more than 50% of the time. Historically, courts have favored awarding one parent primary residential responsibility of the children and awarding the other parent “parenting time” (also known as visitation in some states) to maintain ongoing contact and a close relationship between both parents and the children.

• “Joint residential responsibility” is a term used when children spend approximately 50%, or equal time with each parent. Both parents share the day-to-day care of the children.  There is no presumption for or against joint residential responsibility, except in cases involving domestic violence.  However, true joint residential responsibility arrangements are less common due to their potential to cause both personal and practical difficulties for children. Unless separating parents can effectively co-parent and communicate with one another, adopt similar parenting styles and daily routines for their children, and live relatively close to one another, shared residential responsibility arrangements are laden with risk. 

• “Split residential responsibility” is another, although much less favored, custody option. In split custody cases, one parent has primary residential responsibility of one or more of the parties’ children, and the other parent has primary residential responsibility of the other child(ren).  Courts usually prefer not to separate siblings.

Legal custody, known as “decision-making responsibility” in North Dakota, defines which parent(s) are entitled to make important decisions regarding their children’s health, education, welfare, and upbringing.  In most cases, parents agree to, and courts award, joint or shared decision-making responsibility.  If decision-making responsibility is shared, the parenting plan must address a method of dispute resolution if the parents do not agree.  For example, the parenting plan may state, if the parents do not agree, dad will decide.  Or, it may say, if the parents do not agree, they will work with a third party (i.e. mediator) to resolve the dispute. 

Residential responsibility and decision-making authority will be decided one or two ways: (1) by agreement between parents, or (2) by the Court.  If parents are unable to agree on a parenting plan, and the Court must decide, the Court will evaluate the following factors to determine the best interests of the child:

• The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.

• The ability of each parent to assure that the child receives 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 in the present and in the future.

• The sufficiency and 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, and the desirability of maintaining continuity in the child's home and community.

• The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

• The moral fitness of the parents, as that fitness impacts the child.

• The mental and physical health of the parents, as that health impacts the child.

• The home, school, and community records of the child and the potential effect of any change.

• If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child's preference, including whether the child's preference was based on undesirable or improper influences.

• Evidence of domestic violence. In determining parental rights and responsibilities, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility. The court shall cite specific findings of fact to show that the residential responsibility best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, residential responsibility for a child may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards residential responsibility to a third person, the court shall give priority to the child's nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent residential responsibility. As used in this subdivision, "domestic violence" means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.

• The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

• The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.

• Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute.

The Court must make detailed findings on each of the factors above based upon the evidence presented and explain how each factor led to its conclusion and to the determination of custody.

If your marriage is in trouble, and custody of your children may be an issue, keep the following things in mind:

1. Don’t sign any papers or negotiate on your own. If your spouse requests that you sign any residential responsibility or parenting time agreements, refrain.  The consequences of signing such papers, before consulting an attorney, may be irreparable and detrimental to your case.  Just as important as not signing any documents, you should not verbally agree to any terms or agreement prior to talking to an experienced family law attorney.
   
   
2. Hire an experienced family law attorney. Choosing the right attorney to represent you is an important, and often difficult, decision.  In making the decision, you should look for an attorney who is:
   
   
   • Professional: Your attorney should look and sound professional.  Some red flags may include a lawyer who is inappropriately dressed, is not well-spoken, who keeps a disorganized, sloppy office, or whose office is in an unusual place.
     
     
   • Competent: Divorces often involve important issues such as the residential responsibility of children and complex financial issues.  You should entrust these important considerations to someone who has the knowledge and skills to handle them competently.
     
     
   • Respectful: Your attorney should treat you as an adult who needs help with a problem. He or she should recognize that you are in an emotional situation, and not ridicule or embarrass you because you are in a relationship that has not worked out.
     
     
   • Compatible: Your attorney will be helping you through an unfamiliar and often traumatic period of your life.  Throughout the process, you may need to disclose intimate or even embarrassing information to your attorney.  Your attorney must be someone with whom you are comfortable under these circumstances.
     
     
   • Candid: Throughout your divorce, you may have to make numerous difficult decisions.  It is imperative your attorney is open and honest with you when helping you make these decisions, rather than simply telling you what you want to hear.  While the truth about a given situation may be unpleasant, it is to your benefit to be fully informed.
     
     
3. Don’t procrastinate. If you have been served with a Summons and Complaint stating that an action has been commenced against you, don’t wait until the last minute to find an attorney.  Giving your attorney ample time to make a well thought out response can only help your case.
   
   
4. Don’t move out of the marital residence. In situations where there are children involved and residential responsibility is a concern, do not move out of the marital residence without talking to your attorney first.  If you are in danger and have no choice but to leave, take the children with you.
   
   
5. Journal, journal, journal. Every parent facing the prospect of parenting time litigation should keep a journal.  The outcome of any case will likely turn on a multitude of events.  The details of those events will have been lost unless written down.  Without those details, statements of prior events lose persuasive impact.  General statements such as “he always…” or “she never…” do not sway judges.  As such, you should record such things as abusive events, the use of bad language, whether parenting time has taken place, been missed, or interfered with, whether parenting times have started and ended on time, what a personal has done with the kids during parenting time, what kind of care the other parent is providing, and more.  If your common sense tells you it is important, write it down as it happens.  The details of past events will be your most powerful evidence.
   
   
6. Keep your children out of the divorce. Don’t put your children in the middle of your problems or ask them to take sides.  Don’t use your children as confidants.  Don’t argue in front of your children.  Don’t pump your children for information about the other parent or use your children to carry messages back and forth.  Tell your children you love them and make sure your children know that it is okay to love the other parent.  Reassure your children that they are loved by both parents and they will always be taken care of.
   
   
7. Play nice. Don’t speak negatively about your spouse in front of your children or discourage their communication with the other parent.  Include your spouse in your children’s school activities and special events.  If you are separated from your spouse, allow the children to have reasonable contact with the other parent.  Don’t be mean just to be mean; don’t be petty just to be petty.  Take the higher ground.  Develop a workable and cooperative parenting plan that gives your children access to both of you.  Make every effort to agree with your spouse about discipline.  This will help your child feel more secure.  In the end, your parenting time arrangements will be more bearable and it will be easier for you and the children to move forward.
   
   
8. Avoid exposing your children to your new significant other.

There is no specific age at which a child may decide which parent to live with.  A child’s preference as it relates to primary residential responsibility is given more respect as the child’s age and maturity increases.  As you’d expect, Courts give more weight to the preference of a child who is seventeen than one who is twelve. Court’s seldom—but may—consider children age ten and under to have a sufficient maturity to express a residential responsibility preference.  A child’s preference will be discounted if it appears “purchased” by a parent’s manipulations.  Minnesota law gives an older teen’s residential responsibility preference much more priority and importance than does North Dakota.

Usually, but not always.  A primary residential parent may not move from the state where the divorce was granted without the consent of (1) the other parent, or (2) the Court.  In fact, a person moving the children without such consent may face civil contempt findings or criminal prosecution for depriving the other of parental contact.  If the other parent will not consent to the move, you must ask the Court for permission.  In North Dakota, the primary residential parent has the burden of showing the Court that the move will be in the children’s best interests.  In doing so, the Court will consider:

• The prospective advantages of the move in improving the custodial parents and children’s quality of life;
• The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent;
• The integrity of the noncustodial parent’s motives for opposing the move; and
• Whether there is a realistic opportunity for parenting time, which can be an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternative parenting time.

Courts usually grant “move motions” but, in doing so, also restructure parenting time rights to accommodate the non-moving parent.

Yes. Our office uses “Custody X Change” software.  Among other things, this software allows us to print out, in calendar form, every parenting time scheme imaginable.  Accordingly, we can provide our clients a color-coded calendar for the entire year—or beyond—showing when the children will be with each parent.  The calendar includes start and end times for regular, holiday, and summer parenting times.  Each parent can simply post the calendar on their fridge and both will know exactly when the children should be with them.  The calendar can also be used as a journal to record parenting time events, good or bad, as they occur.  Our fee for providing this service is quite reasonable.

You may want to consider utilizing a safe exchange center for your parenting time exchanges.  Rainbow Bridge Safe Exchange/Visitation Center offers a positive, safe, child friendly, and neutral site where children and parents can be assured that a supervised parenting time or exchange will be safe and conflict free.  Rainbow Bridge is located at 715 North 11^th Street, Suite 101, Moorhead, Minnesota.  There are other safe exchange locations available throughout the state.

No, they don’t. It may be true that moms end up with primary residential responsibility of children more often than dads, but not because of judicial bias in favor of moms.  North Dakota’s legislature has said, “between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.”  N.D.C.C. §14-09-06.1.  North Dakota’s Supreme Court agrees, stating, “the public policy of this state is that there is to be no gender bias in custody decisions regardless of the age of the child.”  McDowell v. McDowell, 2003 ND 174.  Our office has helped many fathers obtain primary residential responsibility of children.  We believe the words of the legislature and Supreme Court are not empty, but are practiced and applied by North Dakota trial courts.  In parenting time disputes, the better parent is awarded residential responsibility, regardless of gender.

Yes, but it is hard.  Grandparents can obtain a Court Order allowing reasonable parenting time with grandchildren.  The grandparents have a difficult burden of proof, though.  They must prove that visitation: (1) will be in the best interests of the children; and (2) will not interfere with the relationship between the children and their parents.  The Courts generally believe that children benefit from a relationship with extended family members.

Parents have a constitutional right to the custody and companionship of their children, superior to that of any other person. That right, however, is not absolute.  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.  Third party custody claims are very rare and are often unsuccessful.

The North Dakota legislature and North Dakota Supreme Court has not attempted to define the “exceptional circumstances” which must exist to permit a court to consider placing custody of a child with a third party rather than with the natural parent.  However, each case (albeit rare) in which such a placement has been upheld 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.

A request to modify primary residential responsibility cannot be made within two years of an order establishing residential responsibility unless: (1) the parties agree to the modification; (2) there is persistent and willful denial or interference with visitation; (3) the child’s present environment endangers the child’s physical or emotional health and development; or (4) the primary physical care of the child has changed to the other parent for longer than six months.

After two years of an order establishing residential responsibility, the Court may modify the primary residential responsibility if it finds: (1) on the basis of facts that have arisen since the prior order, or which were unknown at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and (2) the modification is necessary to serve the best interests of the child.

A parent seeking to change custody has the burden of proof.

Divorce represents a major upheaval for your entire family, including your children.  You can help your kids through this process by creating a game plan of how and when to discuss your divorce with your children.  In many cases, it is a good idea to reach out to a child therapist for guidance before you discuss your divorce.

Although you and your spouse may be at odds during your divorce, it is critical to your children’s well-being that you present as a unified front when you do talk to your children.  Once you’ve decided to discuss your divorce plans with your kids, make sure you’ve picked a neutral time and location for the meeting.  It is best to be honest with your kids, without going into too many unnecessary details.  It is also very important to assure your children that both parents love them, and that love won’t go away.

Your children may take the news hard, or in stride. Your kids may struggle with the fact their lives will never be the same.  You can help your children by fostering their relationship with the other parent.  A parent’s biggest mistake in a divorce is putting the kids in the middle of their own emotional battle.  Keep your kids out of your arguments with your spouse.  No good can come of highlighting the bad qualities of your child’s other parent.