North Dakota and Minnesota Child Custody

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.

How Courts Make Child Custody Decisions In North Dakota

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:

• 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.
• Preference of a child with sufficient maturity to make a sound judgment as to custody/residential responsibility.
• Evidence of domestic violence.
• 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 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.

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.

How Courts Make Child Custody Decisions In Minnesota

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:

• a child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development;
• any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
• the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
• whether domestic abuse, as defined in the relevant Minnesota statutes, has occurred in the parents' or either parent's household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs;
• any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;
• the history and nature of each parent's participation in providing care for the child;
• the willingness and ability of each parent to provide ongoing care for the child; to meet the child's ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
• the effect on the child's well-being and development of changes to home, school, and community;
• the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life;
• the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
• except in cases in which domestic abuse has occurred, the disposition of each parent to support the child's relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
• the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

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.

The Role of an Attorney in Custody Determinations, Enforcement, and Modification

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.