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Know the Laws: North Dakota

UPDATED September 24, 2014

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Please consider getting help from an organization in your area before proceeding with court action. To find an organization, please go to the Where to Find Help tab at the top of this page.

How the custody process works

back to topHow will a judge make a decision about custody?

A judge will make a decision about custody based on what s/he thinks is in your child's best interest.  The judge will look at any factor that s/he thinks is important to make this decision, including:

  • The love, affection, and other emotional ties between the parents and the child;
  • The ability of each parent to nurture the child and give him/her love, affection, guidance, 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 now and in the future;
  • How stable and adequate each parent's home environment is;
  • The impact of extended family;
  • The length of time the child has lived in each parent's home;
  • The desirability of wanting to keep the child's home and community the same as it has been; 
  • The desire and ability of each parent to help make (and encourage) a close and continuing relationship between the other parent and the child;
  • How moral the judge thinks each parent is, as it 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 to those areas of any change;
  • If the child is mature enough to decide what s/he wants, the judge may heavily consider the preference of the child. (The judge must also consider whether there are any factors/influences that may have affected the child's preference);
  • Evidence of domestic violence, as defined by law; (see Can a parent who committed violence get custody or visitation? for more information)
  • The actual or potential relationship/interaction of the child and anyone who lives in or frequently comes to the parents' households in relation to how it affects the child's best interests.  The judge will consider that person's history of abusing others or causing others to fear abuse;
  • Whether either parent made false allegations of child abuse against the other parent; and
  • Any other factors the judge thinks might be relevant to a particular child custody case.*  However, for a parent who is in the military. the judge cannot consider a parent's past deployment or possible future deployment in and of itself when determining the best interests of the child.   The judge can consider, though, any significant impact on the best interests of the child that the parent's past or possible future deployment had/will have on the child.**

Note: The judge may appoint an investigator to talk to any person who may have information about the child and about any potential custody/visitation arrangements.  The investigator then issues a report to all parties.  Unless the court finds that you cannot afford to pay the investigator, you and/or the other parent will have to pay for the investigator's services.***

* N.D.C.C. §14-09-06.2(1)
** N.D.C.C. §14-09-06.2(2)
*** N.D.C.C. § 14-09-06.3

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back to topCan I get financial support for my children and myself?

Possibly, depending on the circumstances. For yourself, if you are in the process of a divorce, you can ask the judge to grant you spousal support, which can be ordered for as long the judge thinks is reasonable.*  For more information about divorce, see our Divorce page.

For your children, the judge can order temporary support while your custody case is going on** and can also award child support as part of the court order for custody.  If you have no custody case going on, you can still file a case asking a judge to order child support.  Even without a court order, both parents have a legal responsibility to give their children support and education.***

When deciding how much child support to award, the judge starts with what is called a guideline amount.  This is an amount the judge gets off of a chart that sets how much a parent has to pay based on that parent's income and how many children the parent has to support.  To see this chart, click here.  The judge assumes that this is the right amount but each parent can argue that the amount should be more or less and the judge will decide.

To get a rough idea of how much child support you may receive go to AllLaw.com's N.D. child support calculator.  

* N.D.C.C. §14-05-24.1
** N.D.C.C. § 14-05-23
*** N.D.C.C. § 14-09-08

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back to topIf I move out of the home and leave my children there with the abuser, can this affect my chances of gaining custody?

Perhaps. Depending on how long you wait to file for custody after moving out, it may be possible that a judge may consider the fact that the other parent has been solely taking care of the children in your absence as a factor when making a decision.  Before you leave an abusive relationship, you may want to get help to make a plan that will allow you to safely and legally take the children with you when you leave.  If you want help doing this, you may want to talk to a lawyer who has experience with domestic violence and custody issues and/or a domestic violence advocate in your area. See our ND Where to Find Help page.

However, you may also be able to convince the judge to consider your reason for leaving the home.  If you left your home to escape domestic violence, a judge has to consider the effect that domestic violence has upon the best interests of the child when making a determination about legal decision-making.* (However, if you argue that the other parent is abusive and should not be around the children, a judge may question why you’d leave your children with him/her.)  It is possible that if the abuser got a temporary custody order based on your absence from the home, a judge may shift custody to the non-abusive parent eventually at trial.  Bear in mind, however, that court cases sometimes drag on, during which time you might not have your children living with you.  It is generally best to have a lawyer representing you in any custody case, especially one where you may be trying to fight for your children to be switched from the abuser's temporary custody to yours.  Go to our ND Finding a Lawyer for legal referrals.

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back to topHow much does it cost?

This amount varies from case to case. It may depend on things like:

  • The cost of your attorney, which may be affected by the amount of conflict between the parents;
  • If the judge assigns an investigator to help examine the parties to decide who would be better suited for custody; and
  • If the judge assigns a guardian ad litem (someone hired to represent the child's best interests in the custody dispute.)*

Each parent will have to pay court costs (like filing fees and serving the papers on the other parent).   If you cannot afford to pay the costs, you can try filing a "Financial Affidavit in Support of Petition for Waiver of Fees."***  A "waiver of fees affidavit" is an application that you can file to ask the judge not to make you pay the court costs and the judge will decide whether to grant it or not. Go to our Download Court Forms page or ask the clerk of court to get a fee waiver petition. 

If the judge assigns an investigator or a guardian ad litem to your case, the judge will decide whether one parent, both parents, or neither parent will pay for their services. 

Much of the cost involved in a custody battle can be attorney fees.  While you have the right to represent yourself, it is usually best that you try to get an attorney if you can.  Hiring an experienced attorney can help a lot with your case.  Often the attorney will ask for what is called a retainer. A retainer is a lot like a down-payment or a deposit.  It is money you pay your attorney up front to secure his or her services.  Then you may have to pay your attorney an hourly rate.

If you cannot afford an attorney, you can go to your local Legal Aid Services office or similar low-cost legal aid office.  However, these organizations do not have enough attorneys and resources to accept every case.  Even if you meet the financial requirements of that organization, it does not mean that they will definitely handle your case.  They may, however, have a referral for a low-cost lawyer that can help you.  To find legal resources in your area, go to our ND Finding a Lawyer page.

Note: If a judge finds that one parent has committed domestic violence, which resulted in serious bodily injury, or involved the use of a dangerous weapon, or there has been a pattern of domestic violence within recent history, then the judge can order that parent  to pay all court costs and attorney's fees.***

* N.D.C.C. §§ 14-09-06.3, 14-09-06.4
** N.D.C.C. § 27-01-07
*** N.D.C.C. § 14-09-29(4)

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back to topDo I need a lawyer?

It is highly recommended that you get a lawyer if you can, especially if the other parent has one.  If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our ND Finding a Lawyer page under the Where to Find Help tab on the top of this page.

For tips on interviewing lawyers, visit Choosing and Working With a Lawyer.

If you plan to file for custody on your own, you may want to visit these sites for additional information:

Even if you plan on representing yourself, consider having a lawyer review your papers before you file them and for general legal advice on how to best prepare for your case.

 

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back to topCan I file for custody in North Dakota?

Generally, you can file for custody in North Dakota if North Dakota is your child's "home state". The child's "home state" is the state where your child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than 6 months old, then your child's home state is the state where s/he has lived since birth. (Leaving the state for a short period of time does not change your child's home state).*

If you and your child recently moved to North Dakota, generally you cannot file for custody in North Dakota until you have lived there for at least six months.  Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least 6 months.  See the next section for exceptions to the home state rule.

Here are some examples:

My children lived in Alabama their whole lives. We just moved to North Dakota a less than six months ago. In my case, Alabama is my children's "home state". If I want to file for custody right now, I will probably need to file in Alabama. The other parent may also be able to file in Alabama.

My children lived in Alabama until we moved to North Dakota more than 6 months ago. Because the children have lived in North Dakota for 6 months, North Dakota is their "home state." I will likely need to file for custody in North Dakota.

My children lived in North Dakota until they left to live with their father in Alabama less than 6 months ago. Because they haven't lived in Alabama for 6 months yet, their home state is still North Dakota. If I want to file for custody, I can most likely file in North Dakota.

 * N.D.C.C. §§ 14-14.1-01(6), 14-14.1-12(1)

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back to topAre there any exceptions to the home state rule?

Yes. There are exceptions to the home state rule.

In some cases, you can file for custody in a state where the children and at least one parent have "significant connections."  Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction.  This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. For a list of legal resources, please see our ND Finding a Lawyer page.

You can also file for temporary emergency custody in a state other than the home state if:

1.) the child is present in the state, AND
2.) the child has been abandoned, OR
3.) it is necessary in an emergency to protect the child because the child, a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse.

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back to topWhat are the steps for filing for custody?

It depends on the particulars of your situation.

  • Generally, if the parents are married, and are seeking a divorce, one or both of the parents usually files for custody as part of a divorce action. See our Divorce Info page for more information.
  • If the parents are already divorced, either parent can can ask to modify the order in the county where the divorce was issued.
  • If the parents were never married or are not getting divorced, either parent can file for custody in district court.  A parent must file in a county within the judicial district where s/he lives (ND Courthouse Locations).

The general steps for getting a custody order are below.  They may be different in your district.  Be sure to check with a lawyer or the clerk of court in your area to see if there are any special rules or steps in your area.

Step 1. Get the forms you need.
The clerk of court, or the courthouse official in charge of records, may be able to give you the forms you need to file for custody. Some courts may not have standard forms. In that case, it is especially recommended that you have a lawyer help you in preparing the paperwork.  To find the contact information for a court in your area, see our ND Courthouse Locations.

Step 2. Fill out the forms.
Carefully enter in the information that the forms ask for.  Make sure to include what type of arrangement you want for both decisionmaking and residential responsibilities, as well as information on why this arrangement is in your child's best interest.

Step 3. File your paperwork with the court.
Give your paperwork to the clerk of court.  At this time, you will also need to pay your court's filing fee.  If you cannot afford the filing fee, you can try filing a "Financial Affidavit in Support of Petition for Waiver of Fees"* (Download Court Forms).  A waiver of fees affidavit is an application that you can file to ask the judge not to make you pay the court costs.  A judge may or may not agree to waive the court costs.   It is completely up to the judge.

Once you have filed your paperwork, a date will be set for further action.  A judge may set a date for a hearing, a date for mediation, or another action that will help the judge make a decision about custody.

Step 4. Service of Process.
After you file your petition, the other parent will have to be served with a copy of your petition.  Being served means giving the papers to let the other parent know that you have filed for custody.  It will also let the other parent know about any upcoming court or mediation dates.   If you do not know where the other parent is, there are other alternatives. If you are having trouble serving the other parent, it is highly recommended that you get a lawyer. To find one in your area, visit our ND Finding a Lawyer page.

You do not have to serve the papers on the other parent yourself.  You can contact the local sheriff's office to find out exactly how to get someone to serve the other parent.  Often the sheriff's department can serve him or her themselves.  They may charge you a fee.  You may also be able to get a constable or a private process server to serve your spouse.  Do not attempt to serve the papers yourself if the other parent has ever been abusive to you.

Step 5. The court takes steps to try to get you and the other parent to agree to a custody arrangement, or to decide what is in your child's best interest.

Once the other parent has been served, the court can take steps to try to get you and the other parent to agree to custody - such as ordering mediation (See What is mediation?).  If you and the other parent can agree on a parenting plan, a judge will usually sign your agreement, making it an official court order.

A judge may also try to figure out what is in the child's best interest.  This can include assigning an investigator or a guardian ad litem to the case.  It will also involve having a hearing or set of hearings, where you and the other parent have the opportunity to tell your side to the judge.  If it looks like this will be a long and drawn-out process, the judge can issue a temporary custody order.

Once the judge believes s/he has determined what is in the child's best interest, the judge will give you a court order with a parenting plan.

To find out what the process will be like for you, please consult a lawyer in your area. If you cannot afford one, you may be able to get help from a legal resource on our ND Finding a Lawyer page.

  * Civil action fees - Waiver - N.D. Cent. Code, § 27-01-07

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back to topWhat is mediation?

Mediation is when a neutral third party sits down with the parties to a child custody or visitation case and tries to help them come to an agreement without going to court.

In a divorce or child custody, support, or visitation proceeding, a North Dakota judge may require the parties to go to mediation. Although mediation can sometimes be helpful, it can be very hard to face the other parent and get a fair deal if that person has abused you or your child.  Be sure to tell the judge if the other parent has been violent with either you or your child-or both.  The court may not require mediation if the other parent has physically or sexually abused you or your child.*

The mediation proceedings will be done in private, but the mediator cannot keep you from bringing your lawyer.**  The mediator will try to help you and the other parent come to a voluntary agreement.  If you come to an agreement, then the mediator will write it up and you and the other parent can sign it.  Be sure to review it or have your lawyer look at it before you sign it to make sure it really is what you agreed to.  The agreement isn't legally binding until the judge approves it.*** 

If you and the other parent cannot come to an agreement, the mediator will tell the judge that you two didn't come to an agreement.  This just means that the mediator will not make any recommendation to the judge.****  Usually when this happens, the judge will hold a full hearing and decide the case.

* Mediation authorized - Exception - N.D. Cent. Code, § 14-09.1-02

** Privacy - N.D. Cent. Code, § 14-09.1-05

*** Mediation agreement - N.D. Cent. Code, § 14-09.1-07

**** Failure to agree - N.D. Cent. Code, § 14-09.1-08

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back to topWho pays for mediation?

Mediation is usually paid for by the parents involved in the custody dispute.  The amount each party has to pay is based on how much each person can afford.*

 * Sliding scale for mediation costs based on income and assets of the parties - NDROC, Rule 8.8

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WomensLaw.org would like to thank the North Dakota Council on Abused Women's Services/Coalition Against Sexual Assault in North Dakota and Legal Services of North Dakota for their assistance in compiling this material.

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