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Legal Information: North Dakota

Custody

Updated: 
March 19, 2020

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:

  1. the judge believes that domestic violence happened; and
  2. either:
    • 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:

  1. there is a pattern of domestic violence within a reasonably close time to the court case; or
  2. 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)