How North Dakota Courts Determine “Best Interest of the Child” in Custody Cases

Parents involved in a custody dispute often worry about how a judge will decide where their child will live and how decisions will be shared. In North Dakota, the legal analysis focuses on a single standard. The best interest of the child is the priority. Under the best interest of the child factors, judges examine specific, enumerated considerations to determine which living arrangement will support the child’s stability, safety, and long-term development.

What Does Best Interest of the Child Mean?

Judges in family-based cases have the unique responsibility of determining how families will move forward after a divorce. This involves deciding where minor children will live the majority of the time, which parent will have the primary decision-making responsibility, or whether such things will be “equal” between the parties. The Judge will focus on crafting a solution that supports the child’s safety and growth, based on the best interest factors.

Generally, a decision is supported by a combination of these factors. No single factor determines the majority of decision-making weight. In certain instances, however, and if the court believes certain factors apply, a “presumption” may also apply. The factors are set forth in N.D.C.C. § 14-09-06.2 as follows:

The love, affection, and emotional ties 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 ensure 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 the 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 chid.
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. . . .
The interaction and inter-relationship, or the potential for interaction and inter-relationship, 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 the 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.
Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute.

We will now discuss and highlight a few of the above-listed factors

Emotional Bonds Between Parent and Child (Factor A)

A judge will examine the child’s relationship with each parent. They will look at each parent's relationship with the child. This includes love, affection, and the strength of emotional ties between each parent and the child. This can be difficult to determine. Parents should focus on showing their involvement with the child’s day-to-day care and day-to-day life. Effective evidence typically includes witness testimony, parenting history, and written documentation.

Ability to Meet the Child’s Basic Needs (Factor B)

The court wants to ensure the child’s needs are being met and will be met in the future. Basic needs include each parent’s specific willingness and ability to provide food, clothing, shelter, medical care, and a safe home. This analysis is not about which parent is richer or can buy the child more. Has the parent participated in preparing and feeding the child meals? Do they have food and snacks available in their home? Have they made, gone to and participated in the child’s medical and dental appointments? Does the parent have a safe, stable, consistent place to live? Do they move around a lot? Is the home tidy and clean? Does the child have their own bed and space in a particular parent’s home? These are all considerations and questions that a court might look at under this factor.

The Child’s Developmental Needs (Factor C)

Children require support for their physical and mental growth and development. The judge will look at each parent’s ability to meet those developmental needs. This analysis could include evaluating the parents’ ability to give emotional support, foster emotional development, and address unique behavioral needs.

Stability of the Home Environment (Factor D)

Courts examine the stability and continuity of each parent’s home environment. A judge will consider how long the child has lived in the home and whether the structure of the home environment itself is stable. A court may also consider how long a parent has lived in that particular residence and the reasons for any moves. They may consider how strong the child’s connections are with their current school and community. Stability analysis can also considers extended family support in the area.

Each Parent’s Willingness to Support the Other Parent’s Relationship (Factor E)

Despite divorce or separation, parents should both retain the ability to have meaningful relationships with their children. As part of this, judges will consider each parent’s willingness to support the other parent’s relationship. The court might consider whether one parent speaks negatively about or in front of the children about the other parent. They might consider any interference by one parent in the other’s parenting time or telephone/electronic contact with the children. The court might also consider one parent denying the other parent time with the child, before a court-ordered schedule is in place.

The Child’s Choice or Preference (Factor I)

There is a common misconception that automatically, once a child hits a certain age, that they get to “choose” which parent they reside with and that choice or preference overrides any other consideration. This is not necessarily the case. As one can see by the text of factor (i), a child’s preference is merely one of the thirteen factors. It is not necessarily given any special weight or priority over other factors. A child’s preference and choice for a primary parent also needs to meet the threshold of being expressed by what the court considers a “mature” child. The older a child is (i.e., teenagers), the more likely a court is to consider them mature enough for their preferences to be considered and given “more weight.” The reason for the child’s preference is also a factor. Does the child prefer dad’s home because of a personality clash with mom or, for example, does the child prefer mom’s house over dad’s because mom lets the child stay up until midnight on school nights to play Xbox? Has mom or dad been trying to influence the child unfairly? Has dad been trying to buy the child gifts or take them on an expensive vacation? Has mom been discussing the divorce in front the children and poisoning the child’s opinion of dad or punishing the child when they express positive thoughts about dad? Does the child’s opinion parrot or reflect what mom or dad said in their court affidavits/declarations?

Parental Health (Factor G)

Having a mental condition or physical ailment, or physical disability does not render someone incapable of caring for a child in the eyes of the court. Millions of people have medical issues, mental health challenges or other ailments that impact them, but who also are good parents. The primary consideration is how any mental or physical health challenge impacts the child. The goal is to confirm each parent’s ability to care for their child. If the parent has a condition that prevents them from caring for the child’s welfare, this could be a factor in the judge’s decision. However, a parent should be prepared to show how they will overcome any potential challenges.

The Child’s School and Community Record (Factor H)

Divorce can have a significant impact on a child. That impact is often evident in their school performance. A judge may consider the child’s school record, social relationships, and community involvement. To minimize the impact of the divorce, judges will try to avoid unnecessary interruptions in the child’s established school routine and social community.

Impact of Domestic Violence in Custody Determinations (Factor J)

If there is evidence of domestic violence, North Dakota family courts take this very seriously. If the domestic violence rises to a certain level and is of a certain seriousness, it may be given significant weight. Under the best interest factors, if domestic violence is of a certain level/seriousness, a rebuttable presumption may apply against awarding residential responsibility to a parent who has committed serious or repeated domestic violence. A parent can overcome the presumption only by presenting clear and convincing evidence that the custody arrangement still may serve the child’s best interests.

Seek Legal Guidance

Custody disputes can be challenging, but North Dakota courts approach these decisions with one guiding principle: the best interest of the child. Judges review multiple aspects of the child’s life to find the right customized solution. The attorneys at Fremstad Law assist families with divorce and custody matters and provide thoughtful, personalized legal support during difficult transitions.

To discuss your custody concerns, reach out to Fremstad Law to schedule a confidential consultation.