Custody

To try to change which parent has primary residential responsibility, you usually have to wait two years after the order was issued to file a motion or two years since the last time you filed for a modification to change primary residential responsibility that was heard by the judge.¹ However, there are exceptions to this two-year rule.

You can file before two years have passed if:

• you and the other parent can agree in writing, or in the parenting plan, that a modification can be filed before the two-year period;² or
• the judge determines that:
  • there has been persistent and purposeful denial or interference with parenting time;
  • the child’s present environment may endanger the child’s physical or emotional health or harm the child’s emotional development; or
  • the child is living with the parent who does not have “primary residential responsibility” for more than six months.³

If any of these apply, and the judge believes it would be in the child’s best interests to change primary residential responsibility, the judge can do so.⁴

You can file after two years have passed if:

• there is a substantial (“material”) change in circumstances of the child or the parties, which is based on:
  • facts that have come up since the prior order was issued; or
  • facts that were unknown to the judge at the time of the prior order; and
• changing the order is necessary to serve the best interest of the child.⁵

The first step to change the custody order is usually to file a motion with the court and have the papers served on the other parent. Then, the other parent can file a response/objection. If the judge finds that you meet the minimum requirements to change a custody order, s/he will hold a hearing where both parents can argue their sides and provide evidence to support their claims. Then the judge will decide whether or not to change the custody order.⁶

¹ N.D. Cent. Code § 14-09-06.6(1), (2)
² N.D. Cent. Code § 14-09-06.6(1)
³ N.D. Cent. Code § 14-09-06.6(3)
⁴ N.D. Cent. Code § 14-09-06.6(5)
⁵ N.D. Cent. Code § 14-09-06.6(6)
⁶ N.D. Cent. Code § 14-09-06.6(4)