North Dakota Child Custody Agreement
Agreeing carries a statutory guarantee on who decides for the child, and nothing comparable on where the child lives.
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Introduction
North Dakota gives a parental agreement a statutory guarantee on half the question and no guarantee at all on the other half. N.D. Cent. Code 14-09-31(1) provides that if the parents have reached an agreement as to decisionmaking responsibility, the court shall accept the agreement unless the court makes written findings that the agreement is not in the best interests of the child. There is no comparable command anywhere in chapter 14-09 for residential responsibility, primary residential responsibility, or the parenting schedule, so an agreement about where the child lives carries no statutory deference clause of its own. What the parents get instead on that side is a filing duty: N.D. Cent. Code 14-09-30(1) requires the parents to develop and file a written parenting plan to be included in the court's decree in any proceeding to establish or modify a judgment providing for parenting time, and directs the court to issue a plan itself if the parents cannot agree. North Dakota also uses its own vocabulary throughout. The 2009 legislature repealed the custody sections outright and replaced them with the allocation of parental rights and responsibilities, so terms such as joint legal custody and sole physical custody have no place in a North Dakota plan.
Key Things to Know
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The effect of agreeing depends on what you agreed about. Under N.D. Cent. Code 14-09-31(1), if the parents have reached an agreement as to decisionmaking responsibility, the court shall accept the agreement unless it makes written findings that the agreement is not in the best interests of the child. No provision in chapter 14-09 says the same about residential responsibility, primary residential responsibility, or the parenting schedule. Those still go before the court on the best interest factors, so an agreed schedule is a proposal the judge evaluates rather than one the judge must accept.
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A written parenting plan is mandatory, and agreement does not excuse it. N.D. Cent. Code 14-09-30(1) provides that 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, and that if the parents are unable to agree the court shall issue a parenting plan considering the best interests of the child. The duty is triggered by parenting time rather than by divorce or custody generally, and it applies to modifications as well as to first orders. N.D. Cent. Code 14-09-00.1(4) defines a parenting plan as a written plan describing each parent's rights and responsibilities, so it has to be in writing.
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The contents are prescribed, but on a comply or explain basis. N.D. Cent. Code 14-09-30(2) requires provisions regarding seven lettered subjects or an explanation as to why a provision is not included, which means an item can be left out if the plan says why. One of the seven is effectively non-waivable: N.D. Cent. Code 14-09-31(3) provides that an allocation of decisionmaking responsibility is not in the best interests of the child unless the order includes a method of resolving disputes. A plan that allocates decisionmaking and omits a dispute resolution method is one the court cannot accept as it stands.
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North Dakota does not use custody vocabulary, and this is a substitution rather than a relabel. The 2009 legislature repealed the custody sections of chapter 14-09 and N.D. Cent. Code 14-09-33 now provides that any law referring to the custody of a child means the allocation of parental rights and responsibilities as provided in that chapter. The definitions at N.D. Cent. Code 14-09-00.1 are precise and easy to get wrong: primary residential responsibility means a parent with more than fifty percent of the residential responsibility, which makes it an arithmetic result rather than a status, and decisionmaking responsibility expressly excludes child support issues.
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The plan is operative through the decree, and later changes run through the court. N.D. Cent. Code 14-09-30(1) says the plan is to be included in the court's decree, and in a divorce N.D. Cent. Code 14-05-22(1) lets the court give direction for parenting rights and responsibilities before or after judgment and vacate or modify the same at any time. N.D. Cent. Code 14-09-06.6(7) allows the court to modify a prior order concerning primary residential responsibility at any time if it finds a stipulated agreement by the parties to modify the order is in the best interests of the child, which is an affirmative finding rather than an absence of objection. Note what that means in practice: even a change both parents want moves nothing until the court makes the finding.
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Best interests is a thirteen factor inquiry, and the list is open. N.D. Cent. Code 14-09-06.2(1) lists factors (a) through (m), introduced by language saying the best interests and welfare of the child is determined by consideration of all factors affecting them and that these factors include all of the following when applicable, with (m) reaching any other factor the court considers relevant. Two entries do more than weigh: (i) requires clear and convincing evidence before the court gives substantial weight to a mature child's preference, and (j) carries a full domestic violence presumption. Between the parents there is no thumb on the scale at all, because N.D. Cent. Code 14-09-29(1) provides that between the mother and father, whether married or unmarried, there is no presumption as to whom will better promote the child's best interests and welfare.
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Domestic violence operates as a rebuttable presumption with a severity threshold. N.D. Cent. Code 14-09-06.2(1)(j) raises a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility where there is credible evidence of domestic violence plus either one incident that resulted in serious bodily injury or involved use of a dangerous weapon, or a pattern of domestic violence within a reasonable time proximate to the proceeding, and the presumption may be overcome only by clear and convincing evidence. N.D. Cent. Code 14-09-29(2) separately limits that parent to supervised parenting time unless there is clear and convincing evidence that unsupervised time would not endanger the child. On agreements specifically, N.D. Cent. Code 14-09-31(4) requires domestic violence to be considered on the joint decisionmaking question and requires written findings if joint decisionmaking is granted anyway, so an agreed joint decisionmaking plan cannot simply be accepted in a case involving abuse. Where there has been abuse or a protective order, this is a situation to raise with a lawyer rather than settle on a form.
Key decisions before you file
Before you file a Child Custody Agreement in North Dakota, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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North Dakota Requirements for Child Custody Agreement
If the parents have reached an agreement as to decisionmaking responsibility, the court shall accept the agreement unless the court makes written findings that the agreement is not in the best interests of the child. The plan should state the decisionmaking allocation plainly and separately so the provision applies to it.
An allocation of decisionmaking responsibility is not in the best interests of the child unless the order includes a method of resolving disputes. This is the one prescribed subject that cannot be dealt with by explaining its omission, so the plan must name a method and a timeframe.
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, and the court shall issue a plan itself if the parents cannot agree. N.D. Cent. Code 14-09-00.1(4) defines a parenting plan as a written plan describing each parent's rights and responsibilities.
The plan must contain provisions regarding decisionmaking responsibility for routine and major decisions, information sharing and access including telephone and electronic access, legal residence for school attendance, residential responsibility and the parenting schedule, transportation and exchange considering the safety of the parties, review and adjustment, and methods for resolving disputes, or an explanation as to why a provision is not included.
North Dakota allocates parental rights and responsibilities rather than awarding custody, and any law referring to custody means that allocation. Use decisionmaking responsibility, residential responsibility, primary residential responsibility, parenting time, and parenting schedule. Primary residential responsibility means more than fifty percent of the residential responsibility, and decisionmaking responsibility excludes child support issues.
Thirteen lettered factors, (a) through (m), which the court considers when applicable, with (m) reaching any other relevant factor. The list is inclusive rather than exhaustive, and it is the yardstick the court applies when deciding whether to make written findings against an agreement.
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. North Dakota raises no presumption in favor of shared arrangements either, so a proposed allocation stands on the factors and not on a default.
A parent with primary residential responsibility may not move the child's primary residence to another state without a court order or the other parent's consent, where the other parent has parenting time under the decree. An order permitting a move by a parent with equal residential responsibility must also award that parent primary residential responsibility. Exemptions apply where the other parent has not exercised parenting time for a year, or has moved out of state and is more than fifty miles away.
Credible evidence of domestic violence together with a qualifying severity element raises a rebuttable presumption against awarding residential responsibility to the perpetrating parent, overcome only by clear and convincing evidence, and limits that parent to supervised parenting time absent clear and convincing evidence to the contrary. N.D. Cent. Code 14-09-31(4) requires domestic violence to be considered on joint decisionmaking with written findings if it is granted.
Motions to modify primary residential responsibility are subject to a two year waiting period, except as to matters agreed to in writing by the parties or included in the parenting plan. The court may modify at any time if it finds a stipulated agreement by the parties to modify is in the best interests of the child, which is an affirmative finding the court must make.
Frequently Asked Questions
It depends on what they agreed about, and the split is unusual. On decisionmaking responsibility, N.D. Cent. Code 14-09-31(1) provides that if the parents have reached an agreement, the court shall accept the agreement unless it makes written findings that the agreement is not in the best interests of the child. On residential responsibility and the parenting schedule there is no equivalent provision anywhere in chapter 14-09, so agreement carries no statutory deference on where the child lives. Both halves still reach the court the same way, through a parenting plan filed under N.D. Cent. Code 14-09-30(1) and included in the decree.
Yes. N.D. Cent. Code 14-09-30(1) says the plan the parents develop and file is to be included in the court's decree, and inclusion in the decree is what makes it operative. In a divorce, N.D. Cent. Code 14-05-22(1) lets the court give direction for parenting rights and responsibilities before or after judgment and vacate or modify the same at any time. The court also has express power to decline what the parents propose: it may make written findings against a decisionmaking agreement under N.D. Cent. Code 14-09-31(1), and under N.D. Cent. Code 14-09-06.6(7) it modifies on a stipulated agreement only if it finds the change is in the child's best interests.
Yes. N.D. Cent. Code 14-09-30(1) requires that 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. Agreement does not excuse the filing, and disagreement does not defeat the plan, because the same subsection directs the court to issue a parenting plan considering the best interests of the child if the parents are unable to agree. The trigger is parenting time specifically, and it covers modifications as well as original judgments.
N.D. Cent. Code 14-09-30(2) requires provisions regarding seven subjects, or an explanation as to why a provision is not included. They are decisionmaking responsibility for routine or day-to-day decisions and for major decisions such as education, health care, and spiritual development; information sharing and access, including telephone and electronic access; the child's legal residence for school attendance; residential responsibility, parenting time, and the parenting schedule, including holidays and days off from school, birthday and vacation planning, weekends and weekdays, and summers; transportation and exchange of the child, considering the safety of the parties; a procedure for review and adjustment of the plan; and methods for resolving disputes. The dispute resolution item carries extra weight, because N.D. Cent. Code 14-09-31(3) provides that an allocation of decisionmaking responsibility is not in the best interests of the child unless the order includes a method of resolving disputes.
The allocation of parental rights and responsibilities. The custody sections of chapter 14-09 were repealed in 2009, and N.D. Cent. Code 14-09-33 provides that any law referring to the custody of a child means the allocation of parental rights and responsibilities as provided in that chapter. The working terms are decisionmaking responsibility, residential responsibility, primary residential responsibility, parenting time, and the parenting schedule. Two definitions at N.D. Cent. Code 14-09-00.1 matter when drafting: primary residential responsibility means a parent with more than fifty percent of the residential responsibility, and decisionmaking responsibility excludes child support issues. Labels such as joint legal custody and sole physical custody do not exist in the North Dakota statute.
N.D. Cent. Code 14-09-06.2(1) sets out thirteen factors lettered (a) through (m): emotional ties and the ability to nurture; food, clothing, shelter, medical care, and a safe environment; the child's developmental needs; the stability and continuity of the home environment; willingness to facilitate the other parent's relationship with the child; moral fitness as it affects the child; the mental and physical health of the parents; the child's home, school, and community records; the preference of a mature child; domestic violence; other persons in or frequenting the household; false allegations of harm made in bad faith; and any other relevant factor. The list is inclusive rather than closed, and the factors apply when applicable. Separately, N.D. Cent. Code 14-09-06.2(2) bars the court from treating a service member's past or possible future deployment as a factor in itself.
Not without a court order or the other parent's consent. N.D. Cent. Code 14-09-07(1) provides that a parent with primary residential responsibility 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, where the other parent has been given parenting time by the decree. Where the parents have equal residential responsibility, N.D. Cent. Code 14-09-07(2) adds that an order permitting the move must also award the moving parent primary residential responsibility, so the move and the change in responsibility come in the same order. Two exemptions apply under N.D. Cent. Code 14-09-07(3): no order is required if the other parent has not exercised parenting time for a period of one year, or has moved to another state and is more than fifty miles from the residence of the parent with primary residential responsibility. The section sets no notice period and no notice form, and it does not reach a move within North Dakota at any distance, which is why an agreed notice clause is worth writing.
It can reverse the ordinary analysis. N.D. Cent. Code 14-09-06.2(1)(j) creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility, triggered by credible evidence of domestic violence together with either one incident that resulted in serious bodily injury or involved the use of a dangerous weapon, or a pattern of domestic violence within a reasonable time proximate to the proceeding. The presumption may be overcome only by clear and convincing evidence, and the same paragraph provides that the fact that an abused parent suffers from the effects of the abuse may not be grounds for denying that parent residential responsibility. N.D. Cent. Code 14-09-29(2) limits a perpetrating parent to supervised parenting time unless there is clear and convincing evidence that unsupervised time would not endanger the child, and N.D. Cent. Code 14-09-29(3) prohibits contact by a parent found to have sexually abused the child until treatment is completed, with therapeutic contact only after that. On agreed plans, N.D. Cent. Code 14-09-31(4) requires domestic violence to be considered specifically on joint decisionmaking and requires written findings if joint decisionmaking is granted anyway.
Yes, through the court. N.D. Cent. Code 14-09-06.6(1) and (2) impose a two year waiting period on motions to modify primary residential responsibility after an order, but both subsections open with an exception for matters agreed to in writing by the parties or included in the parenting plan, so what the parents wrote can shorten the wait. N.D. Cent. Code 14-09-06.6(7) then allows modification at any time if the court finds a stipulated agreement by the parties to modify the order is in the best interests of the child. A side agreement between the parents does not amend the decree by itself.
No. Child support is a separate calculation under its own rules, and North Dakota keeps the two apart in the definitions themselves: decisionmaking responsibility at N.D. Cent. Code 14-09-00.1 expressly excludes child support issues. Work out the plan and the support question separately.