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Know the Laws: North Dakota

UPDATED December 17, 2015

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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.

After a custody order is in place

back to topWhat if the other parent and I have a disagreement about the plan after it is in place?

If you and the other parent have a dispute or disagreement about parenting time or anything else related to your parenting plan, the court may assign you a parenting coordinator to help resolve the issues out of court.  A parenting coordinator:

  • can help figure out whether there has been a violation of an existing court order and, if so, recommend further court proceedings;
  • can be appointed to resolve a one-time parenting time dispute or to provide ongoing parenting time dispute resolution services; and
  • is supposed to attempt to resolve a parenting time disputes by helping the parents to negotiate and to encourage settlement.  Note: If it becomes apparent that the dispute cannot be resolved by an agreement between the parents, the parenting coordinator will make a decision about how to resolve the dispute.*
At any time before the appointment of a parenting coordinator, you can file a written objection to one being appointed if the other parent committed domestic violence against you or your child.  After the objection is filed, a parenting coordinator may not be appointed unless the judge decides (after a hearing, which either party can request) that there is not enough evidence to support the objection.** 

If you do not have a parenting coordinator, then you can go back to court to have the judge resolve your dispute. 

* N.D.C.C. § 14-09.2-01
** N.D.C.C. § 14-09.2-02

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back to topWhen can I ask the court to change which parent has primary residential responsibility?

In order to try to change which parent has primary residential responsibility, you usually have to wait until two years after the order was issued to file a motion (or two years since the last time you filed for a modification to change primary residential responsibility that was heard by the judge).*  However, there are exceptions to this two-year rule.

You can file before two years have passed if
:

  • You and the other parent can agree in writing, or in the parenting plan, that a modification can be filed before the two-year period;*1 or
  • the judge determines that there has been:
    • persistent (continual) and purposeful denial or interference with parenting time; or
    • the child's present environment may endanger the child's physical or emotional health or harm the child's emotional development; or
    • the child is living with the parent who does not have "primary residential responsibility" for more than six months.*2
If any of these apply, and the judge believes it would be in the child's best interests to change primary residential responsibility, the judge can do so.*3

You can file after two years have passed if:
  • Based on:
    • facts that have come up since the prior order was issued, a material (substantial) change has occurred in the circumstances of the child or the parties; or
    • facts that were unknown to the judge at the time of the prior order, a material (substantial) change has occurred in the circumstances of the child or the parties; and
  • changing the order is in the best interest of the child.*4
The first step to change the custody order is usually to file a motion with the court and have the papers served on the other parent.  Then, the other parent can file a response/objection.  If the judge finds that you meet the minimum requirements to change a custody order, s/he will hold a hearing where both parents can argue their sides and provide evidence to support their claims.  Then the judge will decide whether or not to change the custody order.*5

* N.D.C.C. § 14-09-06.6(1),(2)
*1 N.D.C.C. § 14-09-06.6(1)
*2 N.D.C.C. § 14-09-06.6(3)
*3 N.D.C.C. § 14-09-06.6(5)
*4 N.D.C.C. § 14-09-06.6(6)
*5 N.D.C.C. § 14-09-06.6(4)

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back to topCan I change the state where the case is being heard?

Maybe. If you move to another state, you may be able to change the state where the custody case is being heard.  Once you and your child have been living in a new state for 6 consecutive months, then the new state may be able to hear your case.  If you have been in the new state for less than 6 months, then you will probably have to ask the judge that is hearing the case to change the jurisdiction of your case. Many times, the state that heard your original case may keep jurisdiction, or the power to hear your case. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this.

To find legal resources in ND, go to our ND Finding a Lawyer page.

To find legal resources in a state other than ND, select that state from the Where to Find Help tab on the top of this page and then click on Finding a Lawyer.

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back to topIf there is a custody order in place, can I leave the state with my kids?

It depends.  If you have equal or primary residential responsibility for the child and the other parent has any parenting time, then you cannot move to another state unless the other parent consents or you get permission from the judge.*  If the other parents consents, it is a good idea to get the consent in writing and have it notarized so that you could prove the consent if you had to. 

You do not need to get the judge's permission to move out of state if the other parent:

  • has not used his/her parenting time at all for a period of one year or more; or
  • has moved to another state and is more than fifty miles from your home (assuming you are the primary residential parent).*

Please note that regardless of what is explained above, your custody order may have specific terms about moving out of state.  Please be sure to check your order or show it to an attorney if you are unsure whether or not you can move out of state with your child. 

Note: If you take your child out of state (even briefly) and it violates the other parents' parenting time rights in your custody order, you may be at risk of committing a crime.***  If you are unsure about whether or not you can legally leave the state, please speak to a lawyer for advice.  For legal referrals, you can go to our ND Finding a Lawyer page.  For information on modifying a custody agreement, see If a custody order is already in place, how can I get it changed?


* N.D. Cent.Code § 14-09-07(1),(2)
** N.D. Cent.Code § 14-09-07(3)
*** N.D. Cent.Code § 12.1-18-05

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back to topI am not the primary decisionmaker or residence for my child. What rights to I have?

Whether or not there is a court order, both parents have certain rights and duties, unless a judge decides it is in the child's best interest to restrict any of these rights or duties.  In deciding about these rights and duties, the judge MUST consider any domestic violence protection orders that exist. *

Unless the judge has not decided otherwise, both parents have the:

a. Right to access and obtain copies of the child's educational, medical, dental, religious, insurance, and other records or information;

b. Right to attend teacher or school conferences;

c. Right to reasonable access to the child by telephone, mail, email or other electronic means;

d. Duty to inform the other parent as soon as reasonably possible of a serious accident or serious illness for which the child receives health care treatment, including the name of the doctor, clinic, or hospital;

e. Duty to immediately inform the other parent of telephone numbers and address, and any changes of those; and

f. Duty to keep the other parent informed of the name and address of the school the child attends.

These things should all be included in any parenting plan.  If any of these rights or duties are removed by the judge, the judge must explain why.*   

* N.D.C.C. Sec. 14-09-32.

 

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back to topCan I get a child support order changed?

Yes. To get your order changed, you can apply to Child Support Enforcement and contact your Regional Support Enforcement Unit to have your support order reviewed.*  To find the office for your area, click here: http://www.nd.gov/dhs/services/childsupport/progserv/enforcement/access.html

They will be looking for a material change in circumstances that are significant enough to change the order.**  That means they will be looking to see if either parent has experienced a large increase or decrease to their income and/or whether or not the child's needs have changed.  Reviews are done every three years.  You may not qualify for a review if you have had your case reviewed within the last 3 years.***

 * Motion for amendment of child support order - How made - Presumption where obligor's income unknown - N.D. Cent. Code § 14-09-08.8.
** Child support decree can be modified only upon a showing of a material change in circumstances - Freyer v. Freyer, 427 N.W. 2d 348.
*** N.D.C.C. Sec. 14-09-08.4; see also (http://www.nd.gov/dhs/services/childsupport/faq/faq11.html)

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back to topWhat if I have a support order and the other parent is not paying child support?

You can fill out an application with the Child Support Enforcement (CSE) program of the Department of Human Services (DHS). They offer several different types of services to aid in the establishment and collection of child support. They help out with establishing paternity, tracking down parents who aren't paying child support, garnishing wages, and many other services. To apply for CSE services, click here: http://www.nd.gov/dhs/services/childsupport/progserv/

If the other parent is not paying child support that the court ordered, let CSE know. CSE will then attempt to track down that parent and/or make him or her pay. If CSE is unable to make the delinquent parent pay, it can do things like:

  • Garnish the parent's wages (meaning take the child support out of the parent's check before he or she gets paid)*
  • Get a lien on the parent's property (including real estate, motor vehicles, boats, etc.) A lien means that if he doesn't come up with the money he may be forced to sell his property to pay what he owes.*
  • Have the parent's recreational licenses revoked (including hunting and fishing licenses).**
  • Have the other parent's driving privileges suspended.***

 * N.D.C.C. Sec. 14-08.1-03.

**Suspension of occupational, professional, or recreational license for nonpayment of child support or failure to obey subpoena - N.D. Cent. Code § 14-08.1-06

 *** Suspension of motor vehicle operator's license for nonpayment of child support or failure to obey subpoena - N.D. Cent. Code, § 14-08.1-07

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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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