For divorcing or separating couples with minor children, often the most important and most contentious issue is deciding with which parent the children will spend the majority of their time, what time they will spend with the other parent, and who will have the right to make decisions about the children. In other words, parents have to figure out residential responsibility, parenting time, and decision-making responsibility (also referred to as physical custody, visitation, and legal custody, respectively).
Ideally parents will reach a custody agreement on their own before the trial phase of a divorce or custody matter. They may do this with the help of their attorneys, or through enlisting a qualified, third-party neutral mediator. If parents are still unable to agree on custody, the court will have to determine residential responsibility, parenting time, and decision-making responsibility.
Minnesota and North Dakota both determine custody based on “the best interests of the child.” Each state has their own similar, yet unique set of factors which custody determinations must be based on.
In North Dakota, the best interest of the child factors are:
As the court analyzes these factors, the focus is on how each affects the child. For instance, a parent’s physical ailment or illness should not count against them in a custody evaluation unless it negatively impacts the child.
Minnesota’s best interest of the child factors used by the courts to decide issues of physical and legal custody are similar to North Dakota, but also different. Minnesota’s best interest factors, for example, also require consideration of a child’s spiritual and cultural needs and the effect of the proposed arrangements on those needs. The Minnesota best interest of the child factors include:
Additionally, in determining custody issues in Minnesota, there is a presumption not used in North Dakota that it is in the child’s best interests to develop and encourage safe, stable, and nurturing relationships with both parents. The courts must also consider all of the aforementioned factors in determining issues of custody.
Unlike some other aspects of divorce (i.e., property and debt division), residential responsibility and decision-making responsibility may need to be revisited repeatedly after the divorce is concluded and judgment is entered. As a child grows and circumstances change, custody orders may need to be modified. If one parent is not abiding by the court’s order, the other may need to enlist the court in enforcing the order.
In both North Dakota and Minnesota, parents are only able to make motions to modify custody/residential responsibility or parenting time after a certain period of time has passed. If a parent wishes to make a motion to modify inside of that time period, they typically must show that the child’s physical, mental, or emotional health and safety is at risk.
Outside of the specified time frame, a parent advocating for the change must show that there has been a material change in circumstances since the entry of the court’s last order or judgment and that the change is in the best interests of the child.
An experienced family law attorney understands what evidence a court needs to issue an order in her client’s favor, to support a client’s position on enforcement, or to justify changing an existing order. Attorney Lesley Foss has years of experience in North Dakota and Minnesota family law, including child custody. She helps to guide, advise, and assist clients through the process of resolving residential responsibility and decision-making responsibility issues. She explains how the law applies to each family’s unique situation, exploring options with them, and advocating for their needs.
The information contained on this website is to be considered general and informational in nature only. Any articles, blog postings or other information on these pages should not be considered legal advice, referred to for legal advice, and cannot be considered to create any attorney/client relationship. If you need legal advice about residential or decision-making responsibility or a particular family law matter and wish to inquire about Lesley Foss or any other Fremstad Law attorney representing you, please contact the Fremstad Law Firm at (701) 478-7620.
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