How Is Custody Decided?

How Is Custody Decided In North Dakota?

Custody is not decided by what is fair to the parents. Courts consider what is in the "best interests of the child" and look at the following factors:

• Parents' emotional ties with the child.

• Parents' capacity and disposition to love, guide and educate the child.

• Parents' moral fitness and mental and physical health.

• Ability to provide child's basic needs, such as food, clothing, shelter and medical care.

• Past and future stability of the home.

• Child's home, school and community records.

• Child's reasonable preference, if the court finds the child is able to express a preference.

• Evidence of domestic violence.

• Parents' relationship with frequent visitors, or persons who live in the parent's home 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 custody of the child.

What is a Guardian Ad Litem? (GAL)

An advocate for the child's best interest on:
- custody
- child support
- visitation
Appointed by the court
Does not need to be an attorney

Why Would the Court Appoint a GAL?

Special concern about the child's future
In divorce or separation cases where custody is contested.

How Does Domestic Violence Affect Custody?

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 presumption that the parent who has been violent may not be granted custody.

Is Custody Ever Given to a Third Party?

Custody 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 custody.

What Types of Custody Are Granted?

Courts do have the discretion to do order alternating, joint or split custody but generally prefer to grant sole custody to one parent.

Sole custody: One parent is given legal control and is responsible for the physical care of the child; the child has the right to visit the noncustodial parent.
Alternating custody: Each parent has the child for a specific part of the year, such as six months each, or any other
time period, usually divided evenly.
Split custody: 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 custody: Both parents are responsible for the child. The child may be in the physical care of one parent, with visitation by the other parent. North Dakota does not have "joint legal custody" as such; the court must decide the rights of the noncustodial parent. Custody arrangements only work with the combined efforts of both parents.

How Is Custody Changed?

Courts will not hear requests to change custody until two years from the date of the order, unless the request is in the best interest of the child and:

• the parties agree to bring a motion, or

• there has been persistent and intentional interference or denial of visitation, or

• the present environment may harm the child, or

• the noncustodial parent has been physically taking care of the child for over six months.

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.