How Domestic Violence Affects Child Custody in North Dakota

Understanding the implications of domestic violence on child custody rights.

By , Attorney

Domestic violence often bruises not just the skin, but the hearts of its victims as well. For children in violent homes, the effects can be devastating. Judges in North Dakota take domestic violence into consideration when deciding parental custody and visitation rights. In cases of chronic or severe domestic violence, the abusive parent may have restrictions place on his or her visitation or may lose parental rights altogether.

This article explains how a parent's domestic violence may affect child custody orders in North Dakota. If you have questions after reading this article, contact a local family law attorney for advice.

What Is Domestic Violence?

Domestic violence includes much more than physical violence, such as broken bones and bruises. It covers sexual assault and threats to harm another as well. North Dakota state law defines "domestic violence" as physical violence or sexual assault, or threats of physical violence or assault by a family member. For purposes of North Dakota's domestic violence law, a family member includes the victim's:

  • parent
  • adult child
  • current or former spouse
  • co-parent
  • relation by blood or marriage (such as an in-law)
  • romantic partner or other person in a dating relationship, or
  • current or former roommate.

Seeking Help for Domestic Violence

North Dakota takes domestic violence very seriously. If you or your child is a victim of abuse, you can get shelter information and other resources from the North Dakota Council on Abused Women's Services. If you or your child is in immediate danger, call the North Dakota crisis hotline at 1-888-255-6240.

Seeking a Protective Order

If you or your child is in danger, you may need a protective order, also called a petition for protective relief, to keep you safe from future abuse. A protective order requires the abuser to stay a certain distance away from you and your home. An abuser who violates the order by getting too close can be arrested, before any violence takes place.

Legal Services of North Dakota explains the process for obtaining a protective relief petition. Forms for protective relief are available on the North Dakota Supreme Court website. If a judge determines that abuse has happened in the recent past and will likely occur in the future, your protective relief petition will be granted.

Child Custody Orders

Paramount to any custody decision is the best interests of the child. A court will weigh several factors to determine the safest and most stable living situation for a child. North Dakota divides child custody into two categories: residential (the physical location where the child lives) and legal (decision-making power on behalf of the child) custody. To learn more, see Child Custody in North Dakota.

Impact of Domestic Violence on Custody Orders in North Dakota

North Dakota law prohibits a judge from awarding residential custody to a parent who has been convicted of a single incident of domestic violence resulting in a serious injury, unless the evidence shows that it would be in the child's best interests. Thus, while a single incident of domestic violence may not prohibit an abusive parent from visiting with his or her child, it can determine which parent gets custody. In cases involving abuse, certain limitations may be placed on an abusive parent's custody rights. That parent may be allowed only supervised visitation. In extreme circumstances, the abuser's parental rights may be terminated.

Supervised Visitation

If supervised visitation is required, all visits between the parent and child must take place in the presence of an authorized third-party adult or at a designated agency. Supervised visits are usually a temporary requirement to ensure the safety of a child with an abusive parent. For example, North Dakota law requires supervised visitation if an abusive parent has even a single conviction for domestic violence resulting in a serious injury or if there is a history of chronic abuse. Nevertheless, a supervised visitation requirement may be lifted if an abusive parent proves by clear and convincing evidence that traditional visitation would contribute to the child's emotional well-being and that abuse is unlikely to occur in the future.

Termination of Parental Rights

In contrast to supervised visitation, which might be a temporary restriction, termination of parental rights is a permanent decision that cannot be undone. A court will only terminate a parent's rights in the clearest and most extreme circumstances of abuse or neglect. Facts that may result in a termination of an abusive parent's parental rights include:

  • chronic abuse of the child or sibling of the child
  • sexual abuse of any child
  • murder or attempted murder of a sibling of the child
  • murder or attempted murder of the child's other parent
  • felony assault resulting in serious bodily harm to the child or sibling of the child, or
  • felony assault resulting in serious bodily harm to the child's other parent.

After a court terminates a parent's parental rights, the decision is permanent. That parent cannot have his or her rights reinstated, even with good behavior.

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