Basic information and definitions
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.
Who can get custody or visitation
Who can get custody?
Parents have the first right to custody of their child. However, in certain “exceptional circumstances,” if a judge believes that custody with either parent could seriously harm the child, the judge may award custody to a non-parent, including a state agency.1
In addition, when the judge determines that there has been domestic violence, the judge can give residential responsibility to a suitable third person if the judge believes that it is necessary to protect the welfare of the child. The judge must believe that the third person would not allow the child to have contact with a violent parent except as is permitted by the court order. If the judge awards residential responsibility to a third person, priority is given to the child’s nearest suitable adult relative.2
1 See, for example, Hamers v. Guttormson, 2000 ND 93, 610 N.W.2d 758
2 N.D.C.C. § 14-09-06.2(1)(j)
Can a parent who committed domestic violence get residential responsibility?
When determining parental rights and responsibilities, the just is required to consider evidence of domestic violence (as defined by law). There is a “rebuttable presumption” against the abuser getting residential responsibility for a child if:
- the judge believes that domestic violence happened; and
- there is a pattern of domestic violence within a reasonably close time to the court case; or
- there was one incident of domestic violence that:
- resulted in serious bodily injury; or
- involved the use of a dangerous weapon.1
Note: A “rebuttable presumption” means is that the judge is supposed to assume that the abusive parent should not get residential responsibility but the abusive parent can present evidence to change the judge’s mind. If the judge believes that the abusive parent provided clear and convincing evidence that the best interests of the child require the abusive parent to have residential responsibility, the judge can award it to him/her.1
In addition, even if the other parent has not committed domestic violence but s/he lives with (or often invites over) someone who is violent, the judge can consider how this may significantly affect the child’s best interests when making a custody determination. The judge will look at that person’s history of causing (or the likelihood of causing) physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault against others.2
1 N.D.C.C. § 14-09-06.2(1)(j)
2 N.D.C.C. § 14-09-06.2(1)(k)
Can a parent who committed domestic violence against me get parenting time?
If the judge finds that a parent committed domestic violence against you, and either of the following are true, the judge can only allow supervised parenting time:
- there is a pattern of domestic violence within a reasonably close time to the court case; or
- there was one incident of domestic violence that:
- involved the use of a dangerous weapon; or
- resulted in serious bodily injury.1
However, it’s possible that the abusive parent can get unsupervised parenting time if s/he presents clear and convincing evidence to the judge that unsupervised parenting time would not endanger the child’s physical or emotional health.1
In addition, all court costs, attorney’s fees, evaluation fees, and expert witness fees related to the parenting time court proceeding must be paid by the abusive parent (unless those costs would place an undue financial hardship on that parent).2
1 N.D.C.C. § 14-09-29(2)
2 N.D.C.C. § 14-09-29(4)
Can a parent who sexually abused my child get parental responsibilities or parenting time?
If any court has determined that a parent has sexually abused his/her child, the judge cannot allow any contact between the abusive parent and the child until the abusive parent successfully completes a treatment program designed for such sexual abusers. Once the treatment is completed, the judge could only award supervised parenting time if the judge believes that supervised parenting time is in the child’s best interests. However, contact between the abusive parent and the child can only take place as follows:
- in a therapeutic setting;
- facilitated by a therapist as part of a sexual abuse treatment program; and
- only when the therapist for the abusive parent and the therapist for the abused child agree that contact serves a therapeutic purpose and is in the best interests of the child.1|
1 N.D.C.C. § 14-09-29(3)
Can a nonparent get custody or visitation?
North Dakota law assumes that a parent’s decision about allowing contact or not allowing contact between his/her child and a nonparent is in the best interest of the child.1 However, a judge can order custody or visitation to a nonparent, even if the parent disagrees, as long as the nonparent proves that such an order is in the best interest of the child and proves any of the following:
- s/he is a “consistent caretaker” for the child; or
- s/he has a “substantial relationship” with the child to the point where denial of contact would result in harm to the child.2
A judge will consider a nonparent to be a consistent caretaker if s/he did all of the following without expecting any payment:
- lived with the child for twelve months or more, unless the judge finds good reason to accept a shorter period;
- regularly took care of the child;
- made day-to-day decisions about the child on his/her own or with the person who had physical custody of the child; and
- established a “bonded and dependent” relationship with the child, either with the consent of the parent, or without the parent’s consent if the parent is not willing or able to function as a parent.3
A judge will consider a nonparent to have a substantial relationship with the child if the nonparent has a significant emotional bond with the child and either of the following are true:
- the nonparent is related to the child by blood or law; or
- the nonparent formed a relationship with the child without the expectation of payment.4
1 N.D.C.C. § 14-09.4-04
2 N.D.C.C. § 14-09.4-03(1)
3 N.D.C.C. § 14-09.4-03(2)
4 N.D.C.C. § 14-09.4-03(3)
How the custody process works
What are the steps for filing for custody?
The way that you file for custody will depend 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. If the parents were never married or are not getting divorced, either parent can file for custody in district court.
The general steps for getting a custody order are below. 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 and fill them out.
Some of the forms that you will need are available on the North Dakota Courts website but you should be able to access all of the forms you will need at your local courthouse. If your courthouse does not have standard forms, you may need a lawyer to help you. When filling out the forms, make sure to include what type of arrangement you want for both decision-making and residential responsibilities, as well as information on why this arrangement is in your child’s best interest.
Step 2. File your paperwork with the court.
Give your paperwork to the clerk of court. At this time, you will also need to pay the court filing fees. If you cannot afford the filing fee, you can file a fee waiver request in which you ask the judge not to make you pay the court costs.1 The fee waiver forms are available on the North Dakota Courts website. The judge may or may not agree to waive the court costs.
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 3. Service of Process.
After you file your petition, the other parent will have to be served with a copy of your petition and with notice of any upcoming court or mediation dates. You should ask the court clerk for instructions on how the other parent has to be served. If you do not know where the other parent is, there may be other alternatives for how to get him/her served. 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.
Step 4. The court takes steps to try to get you and the other parent to agree on a custody arrangement.
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. 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.
The judge may also take other steps to try to figure out what is in the child’s best interest during a series of court hearings. For example, the judge might assign an investigator or a guardian ad litem to the case. If the parents still cannot agree on a parenting plan, the judge can have a trial where you and the other parent have the opportunity to present evidence, witnesses, etc. 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.
1 N.D.C.C § 27-01-07
You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?
How 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 domestic violence get residential responsibiilty? for more information)
- the actual or potential relationship and interaction between 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 also 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.1
The judge must also take into effect the following factors:
- for a victim of domestic violence, the fact that the abused parent suffers from the effects of the abuse cannot be grounds for denying that parent residential responsibility;
- 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.2
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.3
1 N.D.C.C. §14-09-06.2(1)
2 N.D.C.C. §14-09-06.2(1)(j), (2)
3 N.D.C.C. § 14-09-06.3
Can 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 generally the last state where your child has lived with a parent or a person acting as a parent for at least six months in a row. If your child is less than six 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).1
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 six months. However, there are exceptions to the “home state rule.”
1 N.D.C.C. §§ 14-14.1-01(6); 14-14.1-12(1)
What are the exceptions to the "home state rule"?
There are some exceptions to the “home state rule” regarding where you can file for custody. In some cases, you can file for custody in a state where the child 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, which means power to decide the case.1 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:
- the child is present in the state; and
- the child has been abandoned; or
- 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.2
1 See N.D.C.C. § 14-14.1-12
2 N.D.C.C. § 14-14.1-15(1)
How much does it cost to go through a custody proceeding? Do I need a lawyer?
The amount that a custody case costs varies from case to case. Much of the cost involved in a custody battle can be attorney fees. 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. Usually, the attorney deducts the hourly rate for each hour spent on the case from the retainer. If you cannot afford an attorney, you may be able to find representation through a legal services organization. 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. To find legal resources in your area, go to our ND Finding a Lawyer page.
While you have the right to represent yourself, it is usually best that you try to get an attorney since custody cases can be very complicated. For tips on interviewing lawyers, go to our Choosing and Working with a Lawyer page. If you have to represent yourself, check out our Preparing for Court - By Yourself section.
In addition to lawyers’ fees, other costs may depend on things like whether the judge:
- assigns an investigator to help examine the parties to decide who would be better suited for custody;
- requires the parties to go to mediation and to pay for it themselves;
- assigns a guardian ad litem, which is someone hired to represent the child’s best interests in the custody dispute.1
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 apply for the fees to be waived and the judge will decide whether to grant it or not.2 You can find the fee waiver application on the North Dakota Courts website.
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.3
However, 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 if there has been a pattern of domestic violence within recent history, then the judge can order that parent to pay all court costs, attorney’s fees, evaluation fees, and expert witness fees related to the parenting time court proceeding. However, if those costs would place an undue financial hardship on that parent, the judge may not order him/her to pay them.4
1 N.D.C.C. §§ 14-09-06.3; 14-09-06.4; 14-09.1-02
2 N.D.C.C. § 27-01-07
3 N.D.C.C. § 14-09-06.3
4 N.D.C.C. § 14-09-29(4)
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
After a custody order is in place
If there is a custody order in place, can I move to another state with my kids?
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.1 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).2
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 parent’s parenting time rights in your custody order, you may be at risk of committing a class C felony crime.3 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.
1 N.D.C.C. § 14-09-07(1), (2)
2 N.D.C.C. § 14-09-07(3)
3 N.D.C.C. § 12.1-18-05
When can I ask the court to change which parent has primary residential responsibility?
To try to change which parent has primary residential responsibility, you usually have to wait 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).1 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;2or
- the judge determines that:
- there has been persistent (continual) and purposeful denial or interference with parenting time;
- 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.3
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.4
You can file after two years have passed if:
- there is a substantial (material) change in circumstances of the child or the parties, which is based on:
- facts that have come up since the prior order was issued; or
- facts that were unknown to the judge at the time of the prior order; and
- changing the order is necessary to serve the best interest of the child.5
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.6
1 N.D.C.C. § 14-09-06.6(1), (2)
2 N.D.C.C. § 14-09-06.6(1)
3 N.D.C.C. § 14-09-06.6(3)
4 N.D.C.C. § 14-09-06.6(5)
5 N.D.C.C. § 14-09-06.6(6)
6 N.D.C.C. § 14-09-06.6(4)
What if the other parent and I have a disagreement about the terms of the parenting plan after it is in place?
If you and the other parent have a dispute or disagreement related to your parenting plan or court order, the judge can 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;
- be appointed to resolve a one-time dispute or to provide ongoing dispute resolution services; and
- attempt to resolve 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.1
If the other parent committed domestic violence against you or your child, you can file a written objection to a parenting coordinator being appointed at any time before s/he is appointed. After the objection is filed, either party can request a hearing. If at the hearing, the judge will decide if there is enough evidence or not to support the objection to the parenting coordinator being appointed.2
If you do not have a parenting coordinator assigned, then you can go back to court to have the judge resolve your dispute.
1 N.D.C.C. § 14-09.2-01
2 N.D.C.C. § 14-09.2-02
Can the rights of a parent be restricted when it comes to accessing information and records related to the child?
Each parent has the right to:
- access and get copies of the child’s educational, medical, dental, religious, insurance, and other records or information;
- attend teacher or school conferences;
- reasonable access to the child by telephone, mail, email or other electronic means.1
Each parent has the responsibility (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;
- immediately inform the other parent of telephone numbers and address, and any changes of those; and
- keep the other parent informed of the name and address of the school the child attends.1
However, the judge can restrict or take away any right or responsibility listed above and the judge must consider any domestic violence protection orders relating to the parties when making this decision.2
1 N.D.C.C. § 14-09-32(1)
2 N.D.C.C. § 14-09-32(2)
Can I change the state where the case is being heard?
For information on trying to transfer a custody case to another state/ changing a final custody order a different state, please see our Changing a final custody order page.
This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer or legal aid program in your area, please visit the ND Finding a Lawyer page.