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Legal Information: North Dakota

Custody

Updated: 
March 19, 2020

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 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;
  • be appointed to resolve a one-time parenting time dispute or to provide ongoing parenting time dispute resolution services; and
  • attempt to resolve 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.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.