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. 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?

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. Cent. Code § 27-01-07