North Dakota Child Custody Agreement

Introduction

Key Things to Know

1. 1

   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.

2. 2

   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.

3. 3

   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.

4. 4

   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 The 2009 legislature repealed the custody sections of chapter 14-09 and N.D. Cent.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.

5. 5

   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.

6. 6

   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.

7. 7

   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.

North Dakota Requirements for Child Custody Agreement

• Agreement on Decisionmaking Responsibility, 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 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.

• Method of Resolving Disputes, N.D. Cent. Code 14-09-31(3)

  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.

• Parenting Plan Required, N.D. Cent. Code 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, 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.

• Prescribed Plan Contents, N.D. Cent. Code 14-09-30(2)

  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.

• Statutory Vocabulary, N.D. Cent. Code 14-09-00.1 and 14-09-33

  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.

• Best Interest Factors, N.D. Cent. Code 14-09-06.2(1)

  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.

• No Presumption Between Parents, N.D. Cent. Code 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. North Dakota raises no presumption in favor of shared arrangements either, so a proposed allocation stands on the factors and not on a default.

• Change of Residence to Another State, N.D. Cent. Code 14-09-07

  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.

• Domestic Violence Presumption, N.D. Cent. Code 14-09-06.2(1)(j) and 14-09-29(2)

  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.

• Modification, N.D. Cent. Code 14-09-06.6(1), (2), and (7)

  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.