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How Is Residential Responsibility (Formerly Known As Custody) Decided?

How Is Residential Responsibility Decided In North Dakota?

Residential responsibility is not decided by what is fair to the parents.  It is a decision the Courts must make when parents cannot agree.  Courts consider what is in the “best interests of the child” and look at the following factors:

  • Parents’ emotional ties with the child.
     
  • Parents’ ability to provide child with food, clothing, shelter, medical care, and safe environment.
     
  • Child’s developmental needs and parents’ ability to meet those needs.
     
  • Past and future stability of the parents’ home and impact of extended family.
     
  • Parents’ willingness and ability to facilitate and encourage a close and continuing relationship between the other parent and the child.
     
  • Moral fitness of the parents.
     
  • Mental and physical health of the parents.
     
  • Home, school and community records of the child and the potential effect of any change.
     
  • Evidence of domestic violence.
     
  • Child’s reasonable preference, if the court finds the child is of sufficient maturity.
     
  • Parents’ relationships with others and the impact on the child’s best interests.
     
  • Lies by one parent against the other about harm to the child.
     
  • Any other factors considered by the court to be relevant to deciding residential responsibility of the child.
     

What Is A Parenting Investigator?

An advocate, who is appointed by the court, for the child’s best interest on:         

  • residential responsibility
  • child support
  • parenting time

The parenting investigator does not need to be an attorney.
 

Why Would The Court Appoint  A Parenting Investigator?

  • Special concern about the child’s future.
  • In divorce or separation cases where residential responsibility is contested.
     

How Does Domestic Violence Affect Residential Responsibility?

If the court finds credible evidence of domestic violence and there was the use of a dangerous weapon or someone was seriously injured or there is a pattern of domestic violence with recent events, there is a rebuttable presumption that the parent who has been violent may not be granted residential responsibility.
 

Is Residential Responsibility Ever Given To A Third Party?

Residential responsibility may be given to a third party where both parents have been violent or where parents have abandoned their child.  Priority is given to the child’s nearest suitable adult relative.  Effects of abuse on the abused parent are not grounds to deny that parent residential responsibility.
 

What Types Of Residential Responsibility Are Granted?

Courts do have the discretion to order alternating, joint or split residential responsibility, depending on the individual circumstances of each case.  However, courts generally prefer to grant primary residential responsibility to one parent.

  • Primary residential responsibility: One parent is responsible for more than fifty percent of the residential responsibility and the physical care of the child; the child has the right to parenting time with the non-custodial parent.
     
  • Joint residential responsibility: Each parent has the child for a specific part of the year, such as six months each, or any other time period, usually divided equally.
     
  • Split residential responsibility: Siblings are placed in the separate homes of each parent, when in their best interest, and when no evidence of serious detriment is present.
     
  • Joint decision making responsibility: Each parent is able to make decisions concerning the child.  The term may refer to decisions on all issues or on specified issues, but not child support issues.
     

How Is Residential Responsibility Changed?

Courts will not consider requests to change residential responsibility until two years from the date of the court order, unless the request is in the best interests of the child and:

  • the parties stipulate to the change;
     
  • there has been persistent and intentional interference or denial of parenting time; or
     
  • the present environment may harm the child; or 
     
  • the child has resided with the non-custodial parent for longer than six months.

 

Note: The 2009 North Dakota Legislature changed traditional legal terms such as custody and visitation to residential responsibility and parenting time.


DISCLAIMER: This information is not legal advice.  If you have a legal problem, you should talk to a lawyer and ask for advice about your options.


July 2011

N.D. Cent. Code Chapter 14-09