When parents separate or divorce, child custody decisions can be the most difficult aspects of a case. Some parents are able to reach their own agreements on how to share parenting time and residential responsibility. For those who can’t agree on custody, a judge will decide each parent’s rights and responsibilities at trial.
North Dakota courts make custody decisions by evaluating what custody arrangement would be in the best interests of the child. Your custody arrangement will address both physical custody and legal custody, also called “residential responsibility” and “decision-making responsibility” in North Dakota.
A parent with “residential responsibility” over the child is the parent who primarily lives with the child. The parent with primary residential responsibility is referred to as the “custodial parent”. The other parent (called the “noncustodial parent”) will have ample parenting time with the child, but won’t necessarily live with the child.
A parent with “decision-making responsibility” can make major educational, medical, legal, and religious decisions on the child’s behalf. In many cases share decision-making responsibilities. However, when parents can’t agree on a matter involving the child, the custodial parent has the final say.
When a judge awards parents residential responsibility and decision-making responsibility, it can be joint or sole. Parents with joint physical custody (“joint residential responsibility”) will both spend substantial amounts of time with the child, although not necessarily equal. For example, a joint physical custody award may grant one parent 4 or 5 nights per week and the other parent 2 or 3 nights per week. Parents with joint legal custody (“joint decision-making responsibility”) will share equally in the upbringing of their children and will make major educational, medical, or religious decisions involving the child, together.
Sole custody gives only one parent legal or physical custody rights over the child. A parent with sole physical custody (or “sole residential responsibility”) lives primarily with the child. However, the other parent is still entitled to regular and frequent visits with the child. A parent with sole legal custody (“sole decision-making responsibility”) will make all major decisions on the child’s behalf alone and without input from the child’s other parent.
Both parents are entitled to regular visitation with their children. A typical visitation schedule for a noncustodial parent is one weeknight per week and every other weekend. A court can award a parent more visitation, but not less than the minimum guideline amount. Moreover, one parent can’t prevent visits between the child and the other parent.
Even in cases where one parent has a history of domestic violence or substance abuse, a judge will rarely cut off that parent’s visitation entirely. Instead, a judge might put limits on a parent’s parenting time through supervised visitation. Supervised visits will continue until a judge can be sure a child is safe in a parent’s care.
North Dakota law recognizes that it is generally best for a child to have a healthy relationship with both parents. Unless a child’s safety is at risk, it’s preferable for both parents to encourage the child to have a strong relationship with the other parent.
Whether parents reach their own agreement or leave things up to a judge to decide, a child’s best interests are central to any custody decision. When evaluating residential responsibility and each parent’s decision-making responsibility, a judge will consider all the factors that impact a child’s best interests. Specifically, a judge will examine the following to determine the arrangement most suited to your child’s needs:
A parent with a history of domestic violence resulting in bodily injury or recurrent abusive behavior is presumed to be unfit to have “residential responsibility” over a child. It is possible, however, for the parent who committed the abusive behavior to still receive residential responsibility if that parent produces clear and convincing evidence that it is in the child’s best interest for that parent to have custodial privileges.
This would probably mean showing that the parent had taken a parenting course or anger management course and had gained a better understanding of how to control violence tendencies. Ultimately, a child’s best interests will control the outcome of your North Dakota child custody case. See N. D. Cent. Code § 14-09-06.2 (2020).
Your family’s circumstances will change over time and what once worked for you might not work any more. Either parent can file a request to modify child custody. For a judge to grant the modification, the filing parent must show there’s been a material change in circumstances and a modification would serve the child’s best interests.
Not every life change warrants a change in parental responsibility or decision-making responsibility. For example, a parent’s remarriage, new baby, or job change alone probably isn’t enough to justify a change to the custody order. However, one parent’s major medical crisis, an international relocation, or a child’s failing grades might be enough to warrant an adjustment to the custody order.