North Dakota Child Custody Laws

If you're splitting with your child's other parent, you'll have to deal with the question of which parent the child will primarily live with, how much time the other parent will have with the child, and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how North Dakota law deals with these issues.

Types of Child Custody in North Dakota

There are two basic types child custody: legal custody and physical custody. But North Dakota law now uses the overall term "parental rights and responsibilities" instead of custody, along with the terms "decision-making responsibility" (essentially the same as legal custody) and "residential responsibility" (essentially the same as physical custody).

Although the names are different, the concepts are essentially the same. So we'll use these terms interchangeably.

Decision-Making Responsibility (Legal Custody) in North Dakota

Legal custody—what North Dakota law calls decision-making responsibility—concerns parents' rights to make the important decisions in a child's life on issues like education, medical treatment, and religious upbringing.

In most situations, judges prefer for the parents to share joint decision-making responsibility, because it enhances the active participation of both parents in the child's life. However, one parent may have the right to make these decisions unilaterally, if that's in the child's best interests. North Dakota law requires judges to consider any history of domestic violence when making this decision. (N.D. Cent. Code § 14-09-31 (2023).)

Even in cases where the parents will have joint decision-making responsibility, the judge might give each of them authority over certain issues, such as giving one parent the right to final decisions on the child's education while the other parent could decide on the child's religious upbringing. Also, as the North Dakota Supreme Court has held, a judge may order that when parents with joint decision-making responsibility aren't able to agree on a significant decision, one of them could make the tie-breaking decision. (Dick v. Erman, 923 N.W.2d 137 (N.D. 2019).)

Residential Responsibility (Physical Custody) in North Dakota

Residential responsibility refers to where a child lives. The parent with primary residential responsibility (also known as the custodial parent) has the child more than 50% of the time. The other parent is usually called the noncustodial parent, even if the child lives with that parent for a significant amount of time, as long as it's less than 50%. (N.D. Cent. Code § 14-09-33 (2023).)

Parents might also have "equal residential responsibility" (traditionally called joint physical custody), meaning the child lives with each parent for about the same amount of time.

Parents' Rights and Responsibilities in North Dakota

Under North Dakota law, each parent has the following rights and responsibilities:

• the right to see (and get copies of) the child's educational, medical, dental, religious, insurance, and other records
• the right to attend educational conferences concerning the child
• the right to reasonable access to the child by letter, phone, and email, text, and so forth
• the duty to inform the other parent as soon as reasonably possible of a serious accident or serious illness for which the child receives health care treatment
• the duty to immediately inform the other parent of current and future residential telephone numbers and addresses, and
• the duty to keep the other parent informed of the name and address of the school the child attends.

However, a judge may restrict or exclude any of these rights or duties, as long as the judge states the reason for that decision in the order. When deciding whether to do that, judges must consider any domestic violence protection orders involving the parents (more on that below). (N.D. Cent. Code § 14-09-32 (2023).)

Parenting Plans and Agreements

Parents always have the option of agreeing between themselves on how they'll handle child custody and visitation issues. In fact, the vast majority of divorcing parents do reach an agreement at some point in the process, to save the expense and stress of a trial.

But in order to have the agreement made part of a court order, the parents will need to spell out the details in a parenting plan and submit it to the court. Judges will generally approve these agreements as long as they appear to be in the child's best interests. (N.D. Cent. Code § 14-09-30(1) (2023).)

North Dakota law requires that parenting plans include at least the following provisions:

• how the parents will allocate responsibility for day-to-day decisions as well as major decisions like the child's education, health care, and spiritual development
• information sharing and access, including telephone and electronic access
• the child's legal residence for purposes of school enrollment
• where the child will live (the parent's residential responsibility), as well as a schedule for parenting time that covers weekdays and weekends, summers, holidays and other days off school, birthdays, and vacation planning
• transportation and exchange of the child between the parents
• methods the parents will use to resolve future disputes over the plan (such as mediation), and
• a procedure for reviewing and adjusting the plan in the future.

If any of these provisions aren't included, the plan must explain why not. (N.D. Cent. Code § 14-09-30 (2023).)

Ordinarily, the more detailed the parenting plan the better. This tends to reduce the possibility of confusion or, in some cases, disputes over the original intent of some of the agreement's terms. If you want ideas on what else to include, you can probably find suggestions by searching "parenting plans" online.

Also, if you meet the criteria for filing for divorce online, the questionnaires for some of the reputable services may walk you through preparing a parenting plan. (You might ask about this when comparing online divorce services.)

How Do North Dakota Judges Make Custody Decisions?

When parents can't agree on a parenting plan, a judge will have to decide for them, based on what's in the child's best interests. North Dakota law requires that when judges are deciding what's best for a child, they must consider all of the relevant factors, including:

• the love and emotional ties between the parents and child, along with each parent's ability to provide nurturing, affection, and guidance
• each parent's ability to make sure the child gets adequate food, clothing, shelter, medical care, and a safe environment
• each parent's willingness and ability to encourage a close and continuing relationship between the child and other parent
• the child's preferences, under certain circumstances (more on that below)
• each parent's ability to meet the child's current and future developmental needs
• each parent's home environment, including how long the child has lived with each parent, the child's need for continuity (both in the home and the community), and interactions with any extended family
• the parents' mental and physical health, as well as moral fitness, to the extent that those factors affect the child
• the child's school, community and home records
• the child's relationship and potential interactions with anyone who lives in or frequently visits the parents' homes and who may have a significant impact on the child's best interests
• any evidence of domestic violence (more on that below), and
• whether one parent has falsely accused the other of harming the child (unless the claim was made in good faith).

(N.D. Cent. Code § 14-09-06.2 (2023).)

Does a Parent's Gender Play a Role in North Dakota Custody Cases?

No. North Dakota doesn't establish a preference for either parent because of gender. (N.D. Cent. Code § 14-09-29 (2023); Dalin v. Dalin, 512 N.W.2d 685 (1994).)

Can Children Express a Preference in North Dakota Custody Cases?

North Dakota judges may "give substantial weight" to a child's custody preferences, but only when there's clear and convincing evidence that the child is mature enough to have "sound judgment" on the issue. At the same time, the judge must take into account any other factors that may have affected the child's preference, including whether it was based on "undesirable or improper influences." (N.D. Cent. Code § 14-09-06.2(1)(i) (2023).)

There's no bright line to determine when children are mature enough to form an intelligent opinion about which parent they want to live with. It's up to the judge to decide, based on the circumstances. Age isn't the only measure of maturity. As a general rule, however, judges will give more weight to children's preferences as they get older. (Schlieve v. Schlieve, 846 N.W.2d 733 (N.D. 2014).) Still, a child's opinion about custody will only be one consideration among many—not necessarily the controlling factor.

In order to learn children's wishes, judges may interview them in chambers (the judge's office), as long as the parents consent. The parents may not be present. but if they have attorneys, the lawyers may be there and ask questions. (N.D. Rules of Court, rule 8.13 (2023).) As a general rule, judges avoid making children testify in court, in front of their parents.

Judges may also decide use the services of an outside professional, such as an "attorney guardian ad litem" (GAL) to represent the child's interests and report to the court on the child's wishes. (N.D. Cent. Code § 14-09-06.4 (2023).)

Custody Evaluations in North Dakota

North Dakota judges may decide (on their own or when the parents request it) to appoint an agency, school official, or other qualified individual to conduct a custody investigation) and report back to the court with the results. Along with interviewing the parents and child, the investigator may consult with anyone who might have information about the child and any potential custody arrangements. (N.D. Cent. Code § 14-09-06.3 (2023).)

Child Custody and Domestic Violence in North Dakota

North Dakota presumes that judges should not award residential responsibility to a parent who has committed domestic violence, when there's credible evidence that:

• at least one incident of domestic violence resulted in serious bodily injury or involved the use of a dangerous weapon, or
• the parent had a recent pattern of domestic violence.

A parent can overcome this presumption only with clear and convincing evidence that the child's best interests require awarding physical custody to that parent. (N.D. Cent. Code § 14-09-06.2(j) (2023).)

Parents' Visitation Rights in North Dakota

Whenever one parent is awarded primary residential responsibility, the judge must usually grant the other parent's request for parenting time (visitation), to ensure that the child can maintain a beneficial relationship with the noncustodial parent. (N.D. Cent. Code § 14-05-22(2) (2023).)

The courts much prefer that parents work out a visitation schedule between themselves, but the judge will come up with a schedule in the parenting plan if the parents can't agree. (N.D. Cent. Code § 14-09-30(1) (2023).)

When Judges Limit or Deny Visitation

Judges may limit or completely deny parenting time if the evidence shows that allowing a parent visitation would be likely to endanger the child's physical or emotional health. (N.D. Cent. Code § 14-05-22(2) (2023).)

For instance, when a parent has been guilty of domestic violence (under the standards discussed above), the judge must limit any parenting time to supervised visitation unless the parent can prove that it wouldn't endanger the child to be alone with that parent. And in cases when a parent has sexually abused the child, the judge must prohibit any contact with the child until the parent has successfully completed a specialized treatment program and has found that supervised visitation would be in the child's best interests. (N.D. Cent. Code § 14-09-29 (2023).)

Can Children Refuse Visitation?

Normally children aren't allowed to refuse to visit a parent until they're no longer under parental control. In North Dakota, that's when they reach age 18 or married. Until then, it's the custodial parent's responsibility to see to it that the child obeys the visitation orders.

Of course, that's sometimes easier said than done, especially with older teenagers. If the parents can't work it out through discussions with the reluctant child or by getting outside help (such as a child psychologist), they might have to go back to court to request a modification of the existing visitation schedule.

Modifying Custody in North Dakota

The evolving needs of parents or children—especially as kids get older—may prompt parents to seek changes to custody or parenting time. As with an original custody order, you and the other parent may agree on a change, but you'll need to submit your written agreement along with a motion (written legal request) for a modification. Once you've done that, the judge may modify the order according to your agreement as long as it's in the child's best interests.

Without an agreement, North Dakota law sets out rules for judges when they're deciding whether to modify physical custody. In general, judges may not modify primary residential responsibility within two years after the previous custody order was issued, unless the parent requesting the change proves that it's necessary for the children's best interests and one of the following is true:

• a custodial parent has persistently and willfully denied visitation
• the children's present environment may endanger their physical or emotional health or impair their emotional development, or
• a noncustodial parent has actually assumed primary residential responsibility for longer than six months.

After the two-year period, judges may change residential responsibility if:

• there's been an important change in the children's or parents' circumstances that happened since the previous order or wasn't known at the time, and
• a modification is necessary for the child's best interests.

In order to warrant a modification, the North Dakota Supreme Court has held that the change in circumstances must have had a negative effect on the child. (N.D. Cent. Code § 14-09-06.6 (2023); Anderson v. Spitzer, 974 N.W.2d 695 (N.D. 2022).)

Relocation and Child Custody in North Dakota

One of the common reasons that parents seek a modification of custody or parenting time is when one of them wants to move with the child. As with all custody matters, the judge's primary consideration will be the child's best interests.

North Dakota law sets out specific requirements when parents with any level of physical custody plan to move with the kids out of state. Unless the other parent has agreed to the move, a parent with primary residential responsibility must generally get a court order allowing the relocation, unless the noncustodial parent hasn't exercised visitation for at least a year or has moved to another state and is living more than 50 miles from the custodial parent. A moving parent with joint residential responsibility must get a court order that both allows the move and awards that parent primary residential responsibility. (N.D. Cent. Code § 14-09-07(3) (2023).)

This law doesn't discuss what happens when a parent moves within North Dakota. But the state's courts have have held that any relocation with a child—whether outside the state or within—may constitute a change of circumstances warranting a modification of the existing custody order. (Schroeder v. Schroeder, 846 N.W.2d 716 (N.D. 2014).)

For example, if a parent who has primary physical custody wants to move to the other end of the state, that could significantly impact the other parent's visitation rights. The noncustodial parent may go to court to block the relocation, request primary physical custody, or simply restructure the current visitation schedule.

One of the best ways to avoid a relocation problem is to address the issue in the parenting plan. Setting the ground rules in advance can avoid costly legal battles down the road.

Enforcing Custody and Visitation Orders in North Dakota

If a parent isn't complying with an existing custody or visitation order, the other parent may file a motion seeking the court's intervention. These enforcement motions often include requests for the judge to:

• order a parent to resume obeying the current order immediately, and
• if the violations continue, hold that parent in contempt of court, which can result in fines and even jail time.

If the custodial parent has been withholding visitation, the other parent may ask the court for additional visitation with the child to compensate for the lost time. And if the visitation denial has been willful and persistent, the judge must award the noncustodial parent attorneys' fees and costs for seeking enforcement. (N.D. Cent. Code § 14-09-24 (2023).)

Be aware that custodial parents aren't allowed to withhold visitation even if the other parent isn't keeping up with child support payments. On the flip side, a noncustodial parent may not withhold child support because visitation is being denied.

If you run into a situation where the noncustodial parent is refusing to return the child, the court has emergency procedures to assist you.

Something else to keep in mind is that if you remove a child from the state, or detain the child out of state, with the intent of denying someone else's rights in violation of a custody order, you could be found guilty of a Class C felony in North Dakota. (N.D. Cent. Code § 12.1-18-05 (2023).) This can result in jail time, a fine, or both.

Grandparents Visitation and Custody Rights in North Dakota

North Dakota leaves it up to parents to decide whether to allow grandparents to visit with a child. If they cut off contact, the grandparents will need to go to court to seek an order allowing them to visit their grandchildren.

But in these visitation disputes, North Dakota law presumes that the parents' decision is in the child's best interests. To overcome that presumption, the grandparents (or any other nonparents seeking visitation) must prove by clear and convincing evidence that granting them visitation would be the in the child's best interests, and that one of the following is true:

• they've been the child's consistent caretaker, which generally includes living with and caring for the child for at least a year without expecting compensation, or
• they have a substantial relationship and emotional bond with the child, and it would harm the child if they were denied visitation.

The same rules apply when grandparents or other nonparents are seeking custody of a child. When grandparents request custody and meet the law's requirements, the judge may award them one of the following:

• primary residential responsibility
• joint custody, or
• visitation.

However, the judge may not grant the grandparents custody if they've requested only visitation. (N.D. Cent. Code §§ 14-09.4-03, 14-09.4-04, 14-09.4-13 (2023).)

Getting Help With Custody and Parenting Time

Custody and parenting time are obviously very serious issues. Because most lay people are unfamiliar with North Dakota's laws and court procedures, having to deal with them can add more anxiety and tension to an already emotionally charged situation. And remember, it's not just the parents who are feeling the strain of a custody battle. The children are impacted as well, often more deeply than some people may realize.

It's always best if you and the other parent can resolve your disagreements without heading to court, either on your own or with custody mediation. In fact, in any court proceedings involving custody or visitation, the judge normally orders the parents to participate in mediation.

But if mediation doesn't work or isn't appropriate (such as in cases of domestic violence), you should consider speaking with a knowledgeable family law attorney who can explain your rights and responsibilities, and the best way to move forward. And most certainly speak with an attorney if a custody emergency arises.