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Third-Party Custody and Guardianship in North Dakota

A loving teen girl embracing and kissing her happy grandmother from behind and holding each other outdoors.

Most of the time, it is in the best interests of children to be cared for by their own parents. Sometimes, unfortunately, that is not possible. When there is not a parent available to take care of a child, a third party, often a grandparent, may need to step in, either temporarily or permanently. If you are concerned about the well-being of a child in your life, you should learn about third-party custody and guardianship in North Dakota.

Third-party custody and guardianship can be sensitive issues in family law, because they may involve disputes between a child’s parent and other adults who care about the child. The right legal advice can help you protect a child you love while preserving the best possible relationship with the child’s parent.

What is the Difference Between Custody and Guardianship?

Both custody and guardianship give the right to have a child physically in one's care and to make decisions on behalf of that child. When a third party like a grandparent has custody, it is either because the parent has voluntarily relinquished custody or because a court has ordered the third party to have custody.

A guardianship may come into play when the parents are deceased or have had their parental rights terminated, but a guardianship does not, itself, terminate parental rights. A third-party guardian is responsible for the child's day-to-day care and needs.

When Can a Grandparent Get Custody or Guardianship in North Dakota?

“Custody” as it is commonly referred to, is two separate concepts under North Dakota law: physical custody, which is called "residential responsibility," and  legal custody, which is called "decision-making responsibility". These terms more clearly reflect the responsibilities involved in the child's care.

Like most states, North Dakota presumes that it is in a child's best interests for the child's parents, rather than a third party,  to have residential and decision-making responsibility. A court will not give residential or decision-making responsibility to a grandparent or other relative just because they think they could do a better job than the parents.

There may be circumstances, however, in which a parent is temporarily unavailable to care for a child, such as if the parent is facing a jail term. The parent could voluntarily sign over decision-making and residential responsibility for the child, using a power of attorney, until he or she was able to resume those responsibilities. A parent can grant nearly any parental authority to a third party in this way, except the power to consent to the child's marriage or adoption. A power of attorney does not require a court order, but it lasts for no more than six months and some service providers may not accept that it is valid.

It is generally easiest on a child if the parent is able to acknowledge the need for another responsible adult to have custody. Sometimes, of course, a parent does not recognize their inability to properly take care of a child, like in many cases of chronic substance abuse. In that instance, a grandparent or other third party would need to petition the court to become the child's guardian.

It is not necessary that a guardian be a relative of the child, though relatives are preferred and take priority. All that is necessary is that the appointment of a particular person be in the child's best interests. The proposed guardian may need to undergo a criminal history check.

District Court vs. Juvenile Court

A person may be also appointed guardian of a child in North Dakota District Court as part of a probate proceeding or in juvenile court, depending on the circumstances. District court proceedings are called for if the parents are deceased and a guardian was appointed in a will. District court also oversees guardianship proceedings if parental rights have been terminated by a prior court order.

Juvenile court oversees the guardianship process in cases of deprivation. Deprivation is defined in part by the North Dakota Uniform Juvenile Court Act as “a child who is without the proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents, guardian, or other custodian.”

In order to appoint a guardian in juvenile court, the court must find by clear and convincing evidence that the child is deprived. This is a high legal standard to meet.  

If you are concerned about the safety or well-being of a child that you love, or have questions as to whether obtaining custody or guardianship may be the best option for protecting them, talk to an experienced North Dakota family law attorney to discuss the best path forward.  We invite you to contact our law office to schedule a consultation.

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