Custody in North Dakota.
The starting point the law actually sets, what the judge has to weigh, and the deadlines that catch people out.
See a different stateNorth Dakota
North Dakota's custody chapter contains no presumption for joint decisionmaking, no presumption for equal residential responsibility, and no presumption for either parent. N.D.C.C. § 14-09-29(1) states the standard and then removes any thumb on the scale: the court "shall award the parental rights and responsibilities concerning the child to a person, agency, organization, or institution as will, in the opinion of the court, promote the best interests and welfare of the child. Between the mother and father, whether married or unmarried, there is no presumption as to whom will better promote the best interests and welfare of the child." The only presumption in the chapter runs the other way, against a parent who has perpetrated serious domestic violence. If someone tells you North Dakota starts at 50/50, they are wrong: it starts at a blank slate.
Use the state’s own words
North Dakota retired "custody" in 2009. The statutory terms in N.D.C.C. § 14-09-00.1 are "parental rights and responsibilities" ("all rights and responsibilities a parent has concerning the parent's child"), "decisionmaking responsibility" ("the responsibility to make decisions concerning the child . . . on all issues or on specified issues, but not child support issues"), "residential responsibility" ("a parent's responsibility to provide a home for the child"), "primary residential responsibility" ("a parent with more than fifty percent of the residential responsibility"), "parenting time," "parenting schedule," and "parenting plan." N.D.C.C. § 14-09-33 translates the old vocabulary: "Any law that refers to the 'custody' of a child means the allocation of parental rights and responsibilities as provided in this chapter. Any law that refers to a 'custodial parent' or 'primary residential responsibility' means a parent with more than fifty percent of the residential responsibility and any reference to a noncustodial parent means a parent with less than fifty percent of the residential responsibility."
How North Dakota decides
Decisions against where the child lives
North Dakota splits them as decisionmaking responsibility and residential responsibility, allocated separately in a parenting plan. Decisionmaking can be allocated on all issues or only on named issues. N.D.C.C. § 14-09-31 requires that if the parents agree on decisionmaking, the court shall accept the agreement unless it makes written findings that the agreement is not in the child's best interests; if they cannot agree, the court allocates it in the child's best interests. Section 14-09-31(3) adds a requirement people often miss: "An allocation of decisionmaking responsibility is not in the best interests of the child unless the order includes a method of resolving disputes when parents do not agree on an issue." Your order must say how you will break a tie.
What the judge must weigh
N.D.C.C. § 14-09-06.2(1) lists factors a through m: (a) the love, affection, and other emotional ties existing between the parents and child; (b) the ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment; (c) the child's developmental needs and the ability of each parent to meet those needs; (d) the sufficiency and stability of each parent's home environment, the impact of extended family, and the length of time the child has lived in each parent's home; (e) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; (f) the moral fitness of the parents, as that fitness impacts the child; (g) the mental and physical health of the parents, as that health impacts the child; (h) the home, school, and community records of the child and the potential effect of any change; (i) the child's preference, if the child is of sufficient maturity to make a sound judgment; (j) evidence of domestic violence; (k) the interaction and interrelationship of the child with any person who resides in, is present, or frequents the household of a parent; (l) the making of false allegations not made in good faith; and (m) any other factors considered by the court to be relevant. Factor (l) is worth reading twice: knowingly making bad-faith allegations against the other parent is itself a best-interest factor that can be held against you.
What the child wants
No fixed age, but a demanding standard and real weight when it is met. N.D.C.C. § 14-09-06.2(1)(i): "If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child." The court "shall give due consideration to other factors that may have affected the child's preference, including whether the child's preference was based on undesirable or improper influences." Note the two-step: the maturity finding requires clear and convincing evidence, and only then does the preference get substantial weight.
Where there has been violence or abuse
North Dakota has one of the strongest domestic violence presumptions in the country, and it is aimed at residential responsibility. N.D.C.C. § 14-09-06.2(1)(j) provides that where the court finds credible evidence that domestic violence has occurred, and there exists either "one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding," that combination "creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child." The presumption "may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility." Read the trigger carefully: it takes either one serious incident (serious bodily injury or a weapon) or a pattern. Ordinary evidence of domestic violence outside that trigger is still a mandatory best-interest factor, but it does not fire the presumption. N.D.C.C. § 14-09-29(2) contains a related provision addressed to a parent who has perpetrated domestic violence and does not have residential responsibility.
The paperwork and the people
The parenting plan
Yes. N.D.C.C. § 14-09-30(1): "In any proceeding to establish or modify a judgment providing for parenting time with a child, the parents shall develop and file with the court a parenting plan to be included in the court's decree. If the parents are unable to agree on a parenting plan, the court shall issue a parenting plan considering the best interests of the child." Section 14-09-30(2) requires the plan to include provisions on each of the following, "or an explanation as to why a provision is not included": (a) decisionmaking responsibility for routine or day-to-day decisions and for major decisions such as education, health care, and spiritual development; (b) information sharing and access, including telephone and electronic access; (c) legal residence of the child for school attendance; (d) residential responsibility, parenting time, and the parenting schedule, including holidays and days off from school, birthdays, vacation planning, weekends and weekdays, and summers; (e) transportation and exchange of the child, considering the safety of the parties; (f) a procedure for review and adjustment of the plan; and (g) methods for resolving disputes. We could not confirm the name or link of an official North Dakota form; the North Dakota Supreme Court's self-help center publishes parenting plan materials, so ask the clerk of district court.
If the court appoints someone to look into it
Two mechanisms, with different cost rules. A parenting investigation under N.D.C.C. § 14-09-06.3: in contested proceedings the court, on a party's request or its own motion, "may appoint a parenting investigator and order an investigation and report concerning parenting rights and responsibilities regarding the child." The investigator must be on the public roster the Supreme Court maintains of individuals eligible to serve. The report must be filed and served at least thirty days before the hearing, the complete underlying file and the names of everyone consulted must be made available to the parties, and any party may call the investigator and anyone the investigator consulted for cross-examination at the hearing. Section 14-09-06.3(4) provides that if the parties are indigent, the court shall order the expenses borne by the county where the child resided when the action was commenced. Separately, an attorney guardian ad litem under N.D.C.C. § 14-09-06.4: where the court has reason for special concern about the child's future, or parenting rights and responsibilities are contested, it may appoint an attorney guardian ad litem who "shall serve as an advocate of the child's best interests." On cost, "[t]he court may direct either or both parties to pay the attorney guardian ad litem fee established by the court. If neither party is able to pay the fee, the court may direct the fee to be paid, in whole or in part, by the county" — and the court may later order the parties to reimburse the county.
Moving away
What you must do before you move
N.D.C.C. § 14-09-07, and it is about crossing a state line, not about miles. Subsection 1: "A parent with primary residential responsibility for a child may not change the primary residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree." Subsection 2 covers equal-time arrangements: "A parent with equal residential responsibility for a child may not change the residence of the child to another state except with consent of the other parent or order of the court allowing the move and awarding that parent primary residential responsibility." Subsection 3 lists two situations where no court order is needed: where the other parent "[h]as not exercised parenting time for a period of one year," or where the other parent "[h]as moved to another state and is more than fifty miles [80.47 kilometers] from the residence of the parent with primary residential responsibility." The statute sets no notice period, because the requirement is consent or a court order before the move, not advance notice.
Later on
Changing the order
N.D.C.C. § 14-09-06.6 imposes a two-year bar on changing primary residential responsibility, with named exceptions. "Unless agreed to in writing by the parties, or if included in the parenting plan, no motion for an order to modify primary residential responsibility may be made earlier than two years after the date of entry of an order establishing primary residential responsibility," except as provided in the statute's exception list. The exceptions apply where the court finds "[t]he persistent and willful denial or interference with parenting time," that "[t]he child's present environment may endanger the child's physical or emotional health or impair the child's emotional development," or that "[t]he primary residential responsibility for the child has changed to the other parent for longer than six months." After the two years, modification requires that a "material change has occurred in the circumstances of the child or the parties" and that "modification is necessary to serve the best interests of the child." Both halves are required.
If you were never married
North Dakota puts this in the statute expressly. N.D.C.C. § 14-09-29(1): "Between the mother and father, whether married or unmarried, there is no presumption as to whom will better promote the best interests and welfare of the child." So once parentage is established, an unmarried father starts on exactly the same footing as the mother, with the same factors and the same parenting plan requirement. The old sections that treated children born outside marriage differently, N.D.C.C. §§ 14-09-05 and 14-09-06, were repealed in 2009. The practical caveat is that parentage must be legally established first, so an unmarried father should expect to resolve paternity before or alongside the parenting case.
The rule that catches North Dakota parents by surprise is the two-year lock. Once a court sets primary residential responsibility, you generally cannot move to change it for two years, unless the other parent agrees in writing, your parenting plan says otherwise, or one of three narrow exceptions applies (persistent and willful interference with parenting time, an environment that may endanger the child, or the child having actually lived primarily with the other parent for more than six months). That makes the FIRST order far more important than most people realize. Get it right the first time. Second, North Dakota has no presumption of any kind between parents — the statute says so out loud — so anyone promising you a 50/50 default here is wrong. Third, one of the statutory best-interest factors is "the making of false allegations not made in good faith." Overstating your case in North Dakota is not a free move.
What we could not confirm
- We could not confirm whether mediation is required before a contested custody hearing in North Dakota; the custody chapter does not impose one, but individual judicial districts and Supreme Court administrative rules may. Ask your clerk of district court. We also could not confirm the name or link of an official parenting plan form, though the statute is specific about what the plan must contain, so use the seven required subjects in N.D.C.C. § 14-09-30(2) as your checklist.
Compare all fifty states
Where 50/50 really is the default, and the twenty-six states where nothing is presumed.
And the money side
How North Dakota calculates child support, and the overnight number that changes it.