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Legal Information: North Dakota

Custody

Updated: 
March 19, 2020

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)