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Factors in North Dakota Child Custody

Silhouette of Child Holding Parent's Hand in North Dakota Sunset - Fremstad Law

Divorce or separation from a partner is never easy, particularly when children are involved. One of the most stressful and contentious aspects of a divorce is often making a child custody determination. Even when parents have generally agreed on child-rearing issues during their marriage, they may struggle to reach agreement on custody. Here are some things you should know about child custody in North Dakota.

What is Child Custody?

Child custody is really two separate things: physical custody and legal custody. "Physical custody" refers to the parent with whom a child resides. In North Dakota, physical custody is known as in the statutes as "residential responsibility."

"Legal custody" refers to which parent has the authority to make major decisions for children, such as where they will go to school, what religious upbringing they will have, and what medical treatment they will be given. In North Dakota, legal custody is known as in the statutes as "decision-making responsibility." The parents' custody order may specify the decision-making responsibility each parent has, but decision-making responsibility does not include decisions about child support. That is a separate determination.

How is Child Custody Determined in North Dakota?

Ideally, parents, with their unique knowledge of their children, schedules, and needs, will be able to arrive at a custody agreement that works for the whole family. If parents can reach a reasonable agreement, the court will order child custody as agreed upon by the parents. To this end, joint custody, in which parents equally share residential and/or decision-making responsibility, is an option.

If the parents are unable to agree on residential responsibility and decision-making responsibility for the children on their own, with their attorneys' help, or with the help of a qualified neutral mediator, the court will have to make a decision. North Dakota, like other states, requires that custody determinations be in "the best interests of the child." The law is very specific in stating what factors must be considered by the courts. They include, per North Dakota Code 14-09-06.2:

  • 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;
  • The child's preference, if the court finds that the child is mature enough to make a reasonable decision. The court will also take into account whether the child's preference was influenced by another person.
  • Evidence of domestic violence;
  • The child's interaction and relationship with anyone who resides in the parent's household or is frequently present there, as that impacts the child;
  • False allegations of harm against the child made in bad faith by one parent against the other; and
  • Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute.

Note that many of the factors specifically refer to how the factor impacts the child. For instance, a parent having a physical or mental illness should not, in and of itself, count against the parent for custody purposes. However, if that illness means the parent is unable to attend to the child's needs, it is a relevant consideration.

Similarly, if a parent is an active duty service member, the fact of their past or potential future deployment is not an issue when evaluating the best interests of their minor children. However, any significant impact of a past or potential future deployment may be considered.

How Do I Modify Child Custody in North Dakota?

Depending on the age of your children, you may need to have a custody agreement for ten years, fifteen years, or more. Naturally, during that time, circumstances will likely change, and it may make sense to modify your custody arrangement. However, because stability and consistency is important for children, courts try to avoid frequent, repeated, or unnecessary custody modifications.

Courts in North Dakota will not order a change in primary residential responsibility for at least two years after the date of the original custody order, with limited exceptions. If the court finds that the custody modification is necessary to serve the child's best interests, it may change custody within that two year time frame if one of the following is true and is first established:

  • There has been a persistent and willful interference with, or denial of, parenting time;
  • The child's present environment could endanger the child's physical or emotional health or impair the child's emotional development; or
  • The residential responsibility for the child has changed to the other parent for longer than six months.

After the end of the two year period following an order establishing primary residential responsibility, the court may modify custody if there has been a material change in circumstances of the child or parties, and the modification would be in the child's best interests.

How Will Relocation Affect Custody?

It is fairly common for one parent to relocate to another state in the months or years following a divorce or custody order. Of course, relocation can affect the relationship between a child and their other parent.

If the parent who wants to move with the child has primary residential responsibility, he or she cannot relocate to another state with the child without either the other parent's consent, if the other parent has been granted parenting time, or a court order permitting the move.

If the parent who is seeking to move to another state with the child has equal residential responsibility, he or she must get the other parent's consent, or a court order allowing the move and granting the relocating parent primary residential responsibility.

There are some circumstances in which a court order allowing relocation is not required. A relocating parent does not need court permission to move out of state if the other parent has not exercised parenting time for a period of one year, or if the other parent has moved to another state and is more than fifty miles (80.47 kilometers) from the residence of the parent with primary residential responsibility.

For more information on child custody in North Dakota, or any other matter relating to divorce, we invite you to contact family law attorney Lesley Foss at (701) 478-7620 or complete our online form.