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.