What types of parental rights and responsibilities are part of a custody decision?
In North Dakota, custody is called “parental rights and responsibilities.” When a judge makes an order for parental rights and responsibilities, s/he will decide two basic things: “decision-making responsibility” and “residential responsibility.”
Decision-making responsibility is the responsibility to make decisions concerning the child. The term may refer to decisions on all issues or on specific issues included in the order.1 Some types of decisions often included in this are:
- where your child goes to school;
- whether your child gets medical treatment, such as surgery; and
- what kind of religious training your child receives.
Residential responsibility means a parent’s responsibility to provide a home for the child.2 If a parent has more than 50% of the residential responsibility, s/he has “primary residential responsibility”3 and that parent may be referred to as the “custodial parent.”
After a judge decides which parent has which responsibilities, it is all written down in a parenting plan.4
1 N.D.C.C. § 14-09-00.1(1)
2 N.D.C.C. § 14-09-00.1(7)
3 N.D.C.C. § 14-09-00.1(6)
4 N.D.C.C. § 14-09-00.1(3)
What is a parenting plan and what does it include?
A parenting plan is a written plan describing each parent’s rights and responsibilities.1
As part of a custody case (to establish decision-making and/or residential responsibilities for your child), you and the other parent may create a parenting plan that the judge will include as part of the court order. If you and the other parent cannot agree on the terms of the parenting plan, the judge will make one for you based on what s/he thinks is in the best interest of the child.2
A parenting plan must include all of the following:
- decision-making responsibilities for both routine day-to-day decisions and major decisions such as education, health care, and religion (spiritual development);
- information sharing about your child and access to your child by both parents, including telephone and email or other electronic access;
- the legal residence of your child for school attendance;
- residential responsibility (where the child will live), parenting time, and parenting schedule. The parenting schedule must included who will have the child on holidays, vacations, birthdays, weekends, weekdays, and summers;
- an arrangement for transportation and exchange of the child from one parent to the other, considering the safety of the parties;
- procedures for reviewing and adjusting the parenting plan; and
- methods for resolving disputes about the plan or the child.3
1 N.D.C.C. § 14-09-00.1(3)
2 N.D.C.C. § 14-09-30(1)
3 N.D.C.C. § 14-09-30(2)
What is mediation?
Mediation is when a neutral third party sits down with the parties and tries to help them come to an agreement. If the parents cannot agree, the judge will hold a full hearing and decide the case. The mediator could recommend to the judge that the hearing should be held within 30 days.1
As part of a divorce, child custody, support, or visitation proceeding, the judge may require the parties to go to mediation and to pay for it themselves.2 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 abusive. The judge may not require mediation if the other parent has physically or sexually abused you or your child.2
The mediation proceedings will be done in private, but the mediator cannot keep you from bringing your lawyer.3 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.4
1 N.D.R.CT Rule 8.8(a)(1)(A); N.D.C.C. § 14-09.1-08
2 N.D.C.C. § 14-09.1-02
3 N.D.C.C. § 14-09.1-05
4 N.D.C.C. § 14-09.1-07
What are some pros and cons of getting a parenting plan?
There are many reasons you might choose not to get a parenting plan from a judge. You may decide not to get an order because you don’t want to get the courts involved. You may already have an informal agreement with the other parent that works well for you or you may think that going to court will provoke the other parent into seeking more time and more rights with your child than you want.
However, in some cases it is a good idea to get a parenting plan from a judge. Having a court-ordered parenting plan might make it easier to deal with the other parent because the rights and responsibilities for each parent are stated clearly in the plan. You will have to make this choice based on your particular situation. A lawyer might be able to offer you advice about which choice is right for you. To find a lawyer in your area, please see our ND Finding a Lawyer page.
If you go to court, a judge can give you (or the other parent):
- the right to make decisions about your child;
- the right to have your child live with only one parent or to have the child live with both parents; and
- the responsibility to make child support payments or the right to receive child support payments.
It is important to note that without an order from a judge, parents may be considered to legally have equal rights to their child even if one parent is the primary caretaker and the other isn’t involved.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to ND Finding a Lawyer to seek out legal advice.