Frequently Asked Questions – Child Custody

The following is a list of answers to some general questions about child custody and parenting responsibility that we are frequently asked at Kellington & Oster, P.C.  If you have general questions about the legal process, click here.  If you have general questions about obtaining a divorce, click here.

The answers to these questions are not comprehensive and should not be construed as legal advice.  If you have specific questions about your individual legal needs, contact us today for a consultation!  Call us at (701) 258-1074.


How do courts determine who gets custody of children?

In the state of North Dakota, the court considers several “best interest” factors when determining parental rights and responsibilities.  North Dakota has 13 best interest factors that the court uses in consideration of the welfare of a child.  (see N.D.C.C. § 14-09-06.2).  No one factor is most important as the court will weigh all of the evidence presented that relate to these factors to make a determination in the child’s best interest.


Mother and father live in different states, where do I file for custody?

In most jurisdictions, you would file in the state where the child has resided for at least six months before filing for custody.


Can my child decide which parent he/she wants to live with?

Ultimately, where the child resides is up to the judge unless the parents can agree.  In North Dakota, judges may consider the preference of a child in considering factors affecting the best interests and welfare pertaining to child custody/residential responsibility.  However, the preference of the child does not guarantee where the child will live and which parent will be awarded custody.  Preference of the child is one of many factors that a judge may consider.  In considering a child’s preference, a judge will also consider the child’s maturity and whether the child’s preference is based on improper influences such as parental pressure.  (see N.D.C.C. § 14-09-06.2(1)(i)).


My child wants to talk to the judge.  Can I bring him/her to court?  Can they write a letter to the judge?

In most cases, yes, although the court does not guarantee the child a right to testify.  The preference of the child is one of the factors the court will weigh in consideration of the determination of custody/residential responsibility.  If both parents agree on a child’s testimony, they may jointly file a written request with the court for the child to testify.  If both parents do not agree on a child’s testimony, either parent may file a motion requesting permission for the child to testify.  In considering a child’s testimony for custodial preference, the Court will assess whether the child is of sufficient intelligence, understanding, and experience to express their preference (see Reineke v. Reineke, 2003 ND 167, 670 N.W.2d 841)(see also N.D.C.C. § 14-09-06.2(1)(i)).  The court will generally give more weight to a child’s testimony as they grow older (see Clark v. Clark, 2006 ND 182, ¶12, 721 N.W.2d 6).


When can I change my parenting plan?

In North Dakota, the court generally will not allow modification of a parenting plan earlier than two years after the date of entry of the parenting plan.  However, the court may sometimes modify a parenting plan before two years pass if the parents prepare and file a signed agreement with the court or if the court finds a significant change in circumstances.  These changes in circumstance can include persistent denial or interference with visitation or parenting time, the child is in an environment that may endanger their physical or emotional health or development, or the custody/residential responsibility of the child has changed to the other parent for longer than six months. (see N.D.C.C. § 14-09-06.6).


Who gets to claim the child as a dependent on their taxes?

Unless the parties can come to an agreement about tax dependency, the judge will make a determination on which parent will claim the child for income tax purposes each year (N.D.C.C. § 14-09-09.37).  No two cases are alike.  A judge may determine that the parents are to alternate claiming the child every other year or the judge may grant one parent the right to claim the child each and every year.  In most cases, the parent having the child more than fifty percent of the time is granted the right to claim the child for federal and state income tax purposes.


How is child support determined?

The department of human services has established guidelines to assist courts in determining the amount a parent is expected to contribute for the support of a child.  These guidelines consider gross income and other available resources.  They authorize a deduction to determine net income, specify circumstances for reducing support due to hardship, and consider extended periods of time a child spends with the parent owing the support.  (see N.D.C.C. § 14-09-09.7) (see also N.D. Admin. Code. § 75-02-04.1).


If I have joint custody, doesn’t that mean I don’t have to pay child support?

In most cases where the parents share joint custody/residential responsibility of the child, the state will calculate a child support obligation for both parents and subtract the lesser amount from the greater amount.  The parent with the greater obligation will then owe the difference between the two amounts to the other parent.  (see N.D. Admin. Code § 75-02-04.1-08.2).


What if a parent does not pay their court-ordered child support?

In North Dakota, if a parent does not pay their monthly child support obligation on time, interest may be accrued (see N.D.C.C. § 14-09-08.19).  That parent may be deemed in contempt of court and be subject to certain court-ordered sanctions (see N.D.C.C. ch.27-10).  The court may order a person with past due support to establish a payment plan with the child support agency, to participate in community service, and participate in treatment for mental illness or drug or alcohol dependency. (see N.D.C.C. § 14-09-08.1-05.1).  In a case where the parent owing support falls behind on payments and owes more than three times the monthly support amount, the court may withhold or suspend that parent’s occupational, professional, and recreational licenses.  This may include: any certificate/permit/license issued by a professional board to engage in an occupation or profession, any certificate/permit/license issued by the game and fish department to engage in recreational activities (this includes game tags), and suspension of license to operate a motor vehicle (see N.D.C.C. §§ 14-08.1-06 and -07, and 50-09-08.6).  Any parent who owes an amount greater than two times their monthly obligation or $2,000 and does not have an established payment plan with the child support agency will have their name put on the North Dakota child support arrears registry.  The state agency may report the amount of past due support to credit bureaus and may secure assets to satisfy a past-due support obligation (see  N.D.C.C. §§ 50-09-02.7 to -08.6).


Do grandparents have visitation rights to their grandchildren?

Yes, in the state of North Dakota grandparents may be granted reasonable visitation with their grandchildren or great-grandchildren if the district court determines that the visitation would be in the best interests of the children and does not interfere with the parent-child relationship.  (see N.D.C.C. § 14-09-05.1).

 


The information on this page should not be construed as legal advice nor should it be understood to create an attorney-client relationship.  The information provided on this page is intended only as a general guide to theNorth Dakota court process and is not intended as legal advice nor is it a comprehensive list of North Dakota state rules associated with the court process.  Kellington & Oster, P.C. is not responsible for consequences that may result from information provided on this page as this information cannot replace the advice of a competent licensed attorney in the state of North Dakota. Information on this page is for use at one’s own risk.  Contact us to schedule an appointment to address your individual legal needs.