Child custody in North Dakota

What the law tells the judge to look at

In the order the law lists them.

1. The love, affection, and emotional ties between each parent and the child, and each parent's ability to give the child nurture, love, affection, and guidance.N.D.C.C. § 14-09-06.2(1)(a)
2. Each parent's ability to make sure the child has enough food, clothing, shelter, medical care, and a safe place to live.N.D.C.C. § 14-09-06.2(1)(b)
3. The child's developmental needs, and each parent's ability to meet them now and in the future.N.D.C.C. § 14-09-06.2(1)(c)
4. How stable each parent's home is, the effect of extended family, how long the child has lived in each home, and the value of keeping the child's home and community the same.N.D.C.C. § 14-09-06.2(1)(d)
5. Each parent's willingness and ability to support a close and continuing relationship between the child and the other parent.N.D.C.C. § 14-09-06.2(1)(e)
6. The moral fitness of each parent, as it affects the child.N.D.C.C. § 14-09-06.2(1)(f)
7. The mental and physical health of each parent, as it affects the child.N.D.C.C. § 14-09-06.2(1)(g)
8. The child's home, school, and community records, and how a change might affect the child.N.D.C.C. § 14-09-06.2(1)(h)
9. The preference of a child who is mature enough to make a sound judgment (the judge must find this by clear and convincing evidence). The judge may give it substantial weight, and must also look at whether someone improperly influenced the child.N.D.C.C. § 14-09-06.2(1)(i)
10. Evidence of domestic violence (see the domestic violence rule below).N.D.C.C. § 14-09-06.2(1)(j)
11. How the child gets along, or may get along, with anyone who lives in, visits often, or is present in a parent's home and who may strongly affect the child, including that person's history of violence or threats.N.D.C.C. § 14-09-06.2(1)(k)
12. Whether one parent made false claims, not in good faith, that the other parent harmed the child.N.D.C.C. § 14-09-06.2(1)(l)
13. Any other factor the judge finds important in the case.N.D.C.C. § 14-09-06.2(1)(m)

Other things the judge considers

• For a parent in the military, the judge cannot count past or possible future deployment by itself, but may look at its real effect on the child.N.D.C.C. § 14-09-06.2(2)
• If parents agree on decision-making, the judge must accept the agreement unless the judge finds in writing that it is not in the child's best interest. Any decision-making order must include a way to settle disagreements. If there was domestic violence, the judge must consider it before ordering joint decision-making and must explain in writing if joint decision-making is ordered anyway.N.D.C.C. § 14-09-31
• If a parent sexually abused their child, the judge must stop all contact until that parent completes a treatment program and supervised time is found to be in the child's best interest.N.D.C.C. § 14-09-29(3)
• A parent who makes a false allegation of harm to the child, not in good faith, must pay the other parent's court costs and attorney fees.N.D.C.C. § 14-09-06.5

What the judge may not consider

Between the mother and the father, married or not, the law does not presume that either one is the better parent (N.D.C.C. § 14-09-29(1)).

Joint custody

No presumption. The judge gives parental rights and responsibilities in the way that best serves the child, and the law does not favor either parent or any particular plan.

The child's wishes

The judge may give substantial weight to the preference of a child who is mature enough to make a sound judgment, if the judge finds this by clear and convincing evidence. The law does not set an age. With both parents' consent, the judge may talk with the child in chambers, without the parents present; the talk is recorded.

Domestic violence

If the judge finds credible evidence of domestic violence, and either one incident caused serious bodily injury or involved a dangerous weapon, or there was a pattern of domestic violence close in time to the case, the law presumes that the parent who committed it may not get residential responsibility. That parent can overcome this only by clear and convincing evidence, and the judge must explain how the order protects the child and the victim. In the same situation, a parent without residential responsibility gets only supervised parenting time unless clear and convincing evidence shows unsupervised time would not endanger the child, and the parent who committed the domestic violence must pay the court costs, attorney fees, evaluation fees, and expert fees unless that would be an undue financial hardship. The effects of abuse on the abused parent cannot be used against that parent.

Who has custody before a court order

North Dakota's statute is silent on who has custody before a court order. The old rule for children of unmarried parents was repealed in 2009. Once both are legal parents, neither parent is presumed to be the better parent.

Establishing paternity

How

If the parents are not married, the father becomes a legal parent by signing the North Dakota Acknowledgment of Paternity with the mother, or by a court order. The form is usually signed at the hospital, but you can sign it later, even before the birth. Both signatures must be witnessed. Get the paper form from a hospital, a county child support office, or Vital Records (it cannot be downloaded). There is no fee to file it. Once filed with Vital Records, it is the same as a court decision. A signer can cancel it only by starting a court case within 60 days, or before the first court hearing about the child if that comes sooner. After that, it can be challenged only for fraud, duress, or a material mistake of fact, within 2 years. You can also start a court case to decide paternity, custody, parenting time, and support.

Form

North Dakota Acknowledgment of Paternity (includes a Denial of Paternity section for a mother's husband who is not the father) (SFN 8195)

Cancellation form

No form: a signer rescinds by starting a court proceeding (N.D.C.C. § 14-20-17)

Agency

North Dakota Health and Human Services, Vital Records (and Child Support offices)
https://www.hhs.nd.gov/vital/establishing-paternity

Changing an order

You must wait 2 years after the order that set primary residential responsibility (or after a motion was decided on the merits) before asking to change it, unless the parents agree in writing or the parenting plan allows it. Exceptions: the other parent keeps willfully denying or blocking parenting time; the child's current home may endanger the child's physical or emotional health or development; or the child has lived mainly with the other parent for more than 6 months. Even then, a change within 2 years must also be necessary for the child's best interest. After 2 years, the judge can change it if there has been a material change in the circumstances of the child or the parents, based on new facts or facts the court did not know, and the change is necessary for the child's best interest. You file a motion with sworn statements; the judge decides on the papers whether you have a prima facie case, and only then holds a hearing. The parent asking for the change must prove it. Parents can change the order at any time by an agreement the judge finds is best for the child.

Waiting period: 2 years for primary residential responsibility (with exceptions)

Law: N.D.C.C. § 14-09-06.6

If the other parent does not follow the order

If the other parent does not follow the parenting time order, you can file a motion to enforce parenting time. There is no filing fee. If the judge finds the other parent intentionally interfered, the judge must order make-up parenting time of at least the same type and length (up to double), to be used within 2 years, and may consider a co-parenting app. The judge must order attorney fees and costs for willful and persistent denial of parenting time, can use the same tools used to enforce child support, and can hold a parent in contempt. Willful and persistent denial of parenting time can also allow a custody change motion within the 2-year waiting period. You can also try the free expedited parenting time phone mediation.

Law: N.D.C.C. §§ 14-09-24, 14-09-24.1, 14-09-06.6(3)(a)

Grandparent visitation

North Dakota's old grandparent visitation law was repealed in 2019. Grandparents and other non-parents (such as a sibling or stepparent) now use the Uniform Nonparent Custody and Visitation Act (see below), which covers both custody and visitation.

Custody by someone who is not a parent

A non-parent can ask for custody or visitation by filing a sworn petition. The non-parent must prove either:

• They are a 'consistent caretaker' (lived with the child at least 12 months, cared for the child regularly, made day-to-day decisions, and formed a bonded relationship, without being paid), or
• They have a substantial relationship with the child (a relative, or someone with a strong emotional bond formed without pay) and denying the request would harm the child; and that the order is in the child's best interest.

In a first case, the law presumes a parent's decision about the request is best for the child; the non-parent must overcome it by clear and convincing evidence, but does not have to prove the parent is unfit. If the non-parent or someone living with them committed child abuse, neglect, domestic violence, sexual assault, or stalking, the law presumes the order is not in the child's best interest. Foster parents cannot use this law only because they fostered the child.

Custody and visitation in the order

Yes. Both a temporary domestic violence protection order (which can be issued without notice to the other person) and a full order after a hearing can give temporary primary residential responsibility or set temporary parenting time for your children. The hearing is usually held within 14 days of the temporary order. There is no filing fee.

Military parents

North Dakota has adopted the Uniform Deployed Parents Custody and Visitation Act, with rules for temporary custody orders and for giving a non-parent caretaking authority or contact during a parent's deployment.

Law: N.D.C.C. ch. 14-09.3