Child Custody in North Dakota

Residential responsibility and parenting time

In North Dakota, custody is called residential responsibility. Visitation is called parenting time. Parents who were never married to each other, as well as divorcing parents, ask a North Dakota State District Court to establish both. They do this through an action to establish parenting responsibility. There are two paths. In an uncontested case, both parents agree in writing on every issue and file the completed settlement paperwork together, usually resulting in a quick judgment without a hearing. In a contested case, one parent starts the action alone because the parents cannot agree or the other parent cannot be located. This leads to a trial if the parents do not reach a full settlement.

The best-interest factors under NDCC 14-09-06.2

North Dakota Century Code 14-09-06.2 lists the factors a court weighs for the child's best interests and welfare. These include the emotional ties between each parent and the child, and each parent's ability to provide food, clothing, shelter, and medical care. The factors also cover the child's developmental needs, the stability of each home, and the value of continuity in the child's community. Courts weigh each parent's willingness to support the child's relationship with the other parent. They also weigh the parents' moral fitness and mental and physical health, as these affect the child. Other factors are the child's school and community record and, for a mature child, the child's preference, given by clear and convincing evidence.

The statute also tells the court to weigh evidence of domestic violence specifically. A finding of domestic violence involving serious bodily injury, a dangerous weapon, or a pattern of abuse creates a rebuttable presumption against giving that parent residential responsibility. A parent can only overcome this presumption with clear and convincing evidence that the child's best interests require it.

Jurisdiction: which state can hear the case

A North Dakota district court only has jurisdiction to establish parenting responsibility if North Dakota is the child's home state. The home state is where the child lived with a parent for at least six consecutive months right before the case started. It can also be the home state if that period ended within the past six months and a parent still lives in North Dakota. If North Dakota is not the home state, a district court can still take the case under certain conditions. The child's actual home state court must have declined jurisdiction because North Dakota is the more appropriate forum. The child and at least one parent must have a significant connection to North Dakota beyond mere presence. Substantial evidence about the child must also be available in North Dakota.

A parent should check jurisdiction carefully before filing. A North Dakota court without jurisdiction cannot issue a valid parenting responsibility judgment.

Child support is calculated alongside custody

North Dakota requires parents in an action to establish parenting responsibility to calculate child support as part of the case. This applies even if the parents have their own private agreement about support or do not want a support order right away. The judge or judicial referee decides whether waiving or staying support payments serves the children's best interests. A parent who wants to pay a different amount than the calculation requires must prove two things. One of the limited statutory exceptions applies, and the different amount serves the children's best interests.

Getting help and mediation

North Dakota's Legal Self Help Center publishes forms and guides for establishing parenting responsibility. These self-help forms are not official court forms, though, and courts are not required to accept them in every circumstance. North Dakota also operates a statewide Family Law Mediation Program through the state court administration office. It gives parents a structured option to try to resolve residential responsibility and parenting time disagreements before or during a contested case. A parent should check with the specific district court about local practices for referring a case to mediation.