How Domestic Violence and Divorce Impact Child Custody Cases in North Dakota

Allegations of domestic violence can instantly change the direction of a child custody case. The judge may issue temporary orders before a final ruling is made, either in the form of a temporary/interim order or in the form of a domestic violence protection order (a separate legal action from a custody case). In custody and divorce cases involving domestic violence, courts focus on safety, stability, and the child’s best interests above all else. 

What Is Domestic Violence?

People mistakenly believe that domestic violence only includes physical injuries. The reality is that the North Dakota Century Code 14-07.1-01(2) has a much broader definition. Domestic violence can include physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members. 

In situations involving domestic violence and divorce, these definitions often become especially important, as they can directly influence custody and parenting time decisions.

Allegations of domestic violence can arise during custody cases in several ways. There may be police reports from incidents that law enforcement responds to. A protection order proceeding could take place. Testimony during the custody hearings could bring up allegations of abusive behavior. 

How Domestic Violence Allegations Affect Custody Decisions

Allegations of domestic violence can alter custody arrangements in North Dakota, even before a case is fully resolved. Judges often rely on interim or temporary orders to establish parenting time and decision-making authority while the case moves forward. These interim/temporary orders may limit the accused parent’s access to the child, including requiring supervised visitation or reducing overall parenting time. In some cases, the court may award interim/temporary primary custody to the other parent. 

To ensure the child’s safety, courts may implement additional safeguards. These can include supervised custody exchanges, no-contact requirements between parents as part of the custody plan, or other temporary restrictions.

“Best Interests of the Child” Standard

Under North Dakota Century Code § 14-09-06.2, judges use the standard “best interest of the child” when making decisions about child custody. Judges will use a series of thirteen separate factors to make decisions. Domestic violence is also one of those factors and can significantly influence the final custody decision.  

1. Love, affection, and emotional ties: The emotional ties between the parents and child and each parent’s ability to provide love, affection, and guidance.
2. Basic needs and safety: Each parent’s ability to provide food, clothing, shelter, medical care, and a safe environment.
3. Developmental needs: The child’s developmental needs and each parent’s ability to meet them.
4. Home environment and stability: The stability of each parent’s home and the desirability of maintaining continuity in the child’s home and community.
5. Relationship with the other parent: Each parent’s willingness and ability to encourage a close and continuing relationship between the other parent and child.
6. Moral fitness: Each parent’s moral fitness as it impacts the child.
7. Mental and physical health: Each parent’s mental and physical health as it impacts the child.
8. Home, school, and community: The child’s home, school, and community records and the potential effect of any change.
9. Child’s preference: The preference of a sufficiently mature child, including whether improper influences affected that preference.
10. Domestic violence: Evidence of domestic violence, including whether there was serious bodily injury, use of a dangerous weapon, or a pattern of domestic violence.
11. Other household members: The child’s relationship with people in a parent’s household who may significantly affect the child’s best interests.
12. False allegations: False allegations, not made in good faith, concerning harm to a child.
13. Other relevant factors: Any other factors the court considers relevant to the parental rights and responsibilities dispute.

If the court finds credible evidence that domestic violence occurred, the law creates a rebuttable presumption against awarding residential responsibility to the parent who perpetrated the domestic violence. That presumption can be overcome only by clear and convincing evidence that the parent’s involvement as a custodial parent is in the child’s best interests. 

Temporary Custody Orders and Emergency Decisions

When allegations of domestic violence are made in a custody case, the court may act quickly to address the situation. The court may issue a temporary custody order upon receiving a motion for such an order filed by a party. If there is an immediate concern for the child’s safety, the attorney making the motion for an interim/temporary order can request that an order be issued “ex parte” or that the other party’s normal response time be shortened. These early decisions are not necessarily permanent, but they often remain in place for an extended period while the case moves through the court system. 

Any allegations of domestic violence are taken seriously by the court. The court looks for evidence to support any claims, counterclaims, and allegations of domestic violence that are made. Working with a family law lawyer with experience in cases involving domestic violence and divorce can provide guidance as to what information and evidence is the most impactful and persuasive in a typical custody-related proceeding. A parent making any such allegation, must collect and gather evidence showing any incidents of alleged abuse. 

Evidence Courts Consider

When considering domestic violence allegations in the context of a child custody proceeding, the court will look at evidence provided by both parents. Police reports, medical records, protection orders, and witness statements are all impactful forms of evidence on the domestic violence best interest factor, as is testimony of the parties involved. Text messages, emails, and legally obtained recordings between the parents can also be helpful. In high-conflict cases, courts may appoint guardians ad litem or parenting investigators to assist the Court. 

Speak With a Lawyer 

Domestic violence allegations can change the course of a custody case in ways many parents do not expect. From temporary restrictions to long-term custody determinations, North Dakota courts place a strong emphasis on safety. 

Fremstad Law works with parents facing difficult custody disputes and provides straightforward legal support during high-conflict family law matters. The firm understands what is at stake and helps clients take informed steps forward. 

If you are dealing with a custody case involving domestic violence allegations, contact us online or call 701-401-9220 to learn how we can assist you.