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)

Each parent has the right to:

• access and get copies of the child’s educational, medical, dental, religious, insurance, and other records or information;
• attend teacher or school conferences;
• reasonable access to the child by telephone, mail, email or other electronic means.¹

Each parent has the responsibility (duty) to:

• inform the other parent as soon as reasonably possible of a serious accident or serious illness for which the child receives health care treatment, including the name of the doctor, clinic, or hospital;
• immediately inform the other parent of telephone numbers and address, and any changes of those; and
• keep the other parent informed of the name and address of the school the child attends.¹

However, the judge can restrict or take away any right or responsibility listed above and the judge must consider any domestic violence protection orders relating to the parties when making this decision.²

¹ N.D. Cent. Code § 14-09-32(1)
² N.D. Cent. Code § 14-09-32(2)

Abusers often misuse court proceedings in order to continue the abuse. This is called abusive litigation. If you are the victim of abusive litigation by a current or former intimate partner who has committed domestic violence or disorderly conduct against you, you can ask the judge to dismiss the abuser’s case. See our Litigation Abuse section for more information on how to do this.