Family Law

How do Judges Decide Child Custody in North Dakota

By Melissa Heinig, Attorney
When parents can't agree on custody arrangement, they will have to head to court. Read more to understand what factors judges consider when they decide custody and visitation in North Dakota.

When parents get a divorce, custody and parenting time are often the most difficult topics to agree on. Parents usually know what’s best for their family, so courts encourage them to create their own custody agreements. If parents can’t agree on legal custody, physical custody, and visitation, a judge will decide based on what’s best for the children.

What Is Custody?

Legal Custody: Decision-Making Responsibility

Parents with decision-making responsibility (legal custody) have the right to make decisions regarding their children’s education, health, and general welfare. Some common issues that arise during these disputes often include:

  • where the children will live
  • what religion the children will study
  • where the children will go to school, and
  • which parent will make major medical decisions for the children, like whether to have surgery or get braces.

The court may award sole legal custody (to one parent) or joint legal custody (shared between two parents). Generally, judges will grant parents joint legal custody, which means both parents will have a right to take part in decisions on major issues that impact significant parts of the children’s lives. If parents simply can’t agree after trying to work out their differences on a certain child-related issue, they will need to ask the court for help deciding.

If the court awards one parent sole legal custody, that parent can make all major decisions about their children’s welfare without consulting the other parent. Courts rarely award a parent sole legal custody, but if there is a history of domestic violence, drug or alcohol abuse, or an absent parent, a judge may consider a sole custody award.

Physical Custody: Residential Responsibility

Residential responsibility (physical custody) generally refers to the parent’s time with the children and includes where the children will live and which parent will be responsible for the children’s daily needs. Like legal custody, the court can award sole or joint physical custody.

If a judge awards one parent sole physical custody, it means that the children will reside with that parent most of the time, and the other parent will have visitation rights with the children. An award of joint custody generally means that the children stay overnight with each parent for nearly an equal amount of time, and parents will share in all rights and responsibilities for the children.

What Is Visitation?

If a court awards one parent sole physical custody, the next step is to determine a visitation schedule for the non-custodial parent and the child. Children today are busy with sports and school, and parents often work long hours, so creating a parenting time schedule that works for the children and both parents can be difficult. If parents set aside their feelings, they may be able to work together and create the best schedule for their family. When creating this schedule for your family, together, you should consider:

  • holidays and school breaks
  • mid-week and weekend visitation
  • pick-up and drop-off locations and responsibilities, and
  • who will pay for transportation costs.

If parents can’t agree, a judge will have to decide parenting time based on a variety of factors, including the availability of each parent, the child’s relationship with each parent, and the distance between each parent’s home. In most cases, it’s in the child’s best interest to have substantial time with each parent, but if there is a history of domestic violence or child abuse, a judge may order supervised parenting time to protect the children’s emotional or physical health. If supervised visits are appropriate, it means the non-custodial parent will spend time with the children in a public location with a third-party in attendance.

How Does the Court Determine Custody?

Parents have control over the best custody arrangement for their family, but to be successful, they must agree to work together to decide legal and physical custody. If they agree, the court will approve the plan. If parents can’t agree, courts in North Dakota will determine custody based on the children’s best interest and the following factors:

  • the love, affection, and emotional ties between the parents and children, and the ability of each parent to provide the children with nurture, love, affection, and guidance
  • each parent’s ability to provide the child with food, clothing, shelter, medical care, and safe environment
  • the child’s developmental needs and each parent’s ability to meet those needs now and in the future
  • the stability of each parent’s home and the length of time each parent has lived in their home
  • each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the other parent and the child
  • each parent’s moral fitness
  • each parent’s mental and physical health
  • the child’s home, school, and community records
  • the child’s opinion, if the court believes the child is mature enough to form an opinion
  • any evidence of domestic violence
  • the interaction and relationship between the child and any person who lives with each parent
  • whether either parent has made false allegations against the other parent, and
  • any other factors considered by the court.

Can I Change a Custody Order?

Once the court makes its decision about custody arrangements and creates a parenting plan, both parents must follow it. If both parents agree to change the custody or visitation order at a later date, the court will approve a modification. In North Dakota, if only one parent requests a change, and if less than 2 years have passed since a court entered the order, the parent who wants to modify custody must show that the proposed change in the children’s best interest, and:

  • the other parent has ignored or interfered with the current arrangement,
  • the child’s current environment poses a physical or emotional harm to the child, and
  • in the last 6 months, the custodial arrangement has changed to the other parent.
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