In North Dakota, custody orders—whether for equal residential responsibility (shared parenting time) or primary residential responsibility (when one parent has more than 50% of the parenting time)—are not easily modified.
Once a court has issued an order regarding residential responsibility, changing it requires a strong legal argument. Unless the parties agree to the changes, the parent seeking modification must file a written request to the court and prove their case.
What is the Burden?
The parent seeking modification must prove the following:
Material Change in Circumstances
There must be a significant change in the child’s environment or circumstances that justifies a review of the current custody arrangement. This can include:
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- A parent relocating
- A child’s expressed preference to live with the other parent
- A parent’s involvement in illegal activity or domestic violence
- Changes in the health or safety of the child
- A child’s development needs that the current arrangement does not adequately address
These changes must have occurred after the last court order was entered. Any facts or circumstances known prior to the order do not constitute a material change in circumstances.
Adverse Effects on the Child
A material change alone is not enough. A recent string of Supreme Court rulings has heightened this burden by requiring a demonstration that the child has experienced actual harm due to the current custody arrangement. This could include:
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- Disruption in the child’s daily routine or stability
- Withdrawal or isolation
- Behavioral problems
- Decline in a child’s physical and/or mental health
- Decline in the child’s academic performance or social relationships
A mere claim of sadness, anxiety, or other emotions without accompanying evidence of actual harm or detrimental effects on the child will not be enough to justify a modification. They must be supported by tangible, documented evidence, such as medical or school records, expert evaluations, or testimony from individuals with firsthand knowledge.
Modification is Necessary to Serve the Best Interests of the Child
Even after proving a material change and tangible harm to the child, the Court must still determine whether the modification is in the child’s best interest. North Dakota requires courts to consider several factors. For a more thorough analysis of what these 13 factors entail, check out our blog on the best interest factors: https://rosenquistlawoffice.com/blog/family-law/best-interest-of-the-child-factors/.
Conclusion
If you want to modify an existing order or have questions, having an experienced family law attorney at your side can be invaluable. Please get in touch with our office at +1 (701) 775-0654 or email us at lawinfo@rosenquistlawoffice.com to schedule a free consultation today.
*The information in this article and on this website is for informational purposes only. This information is not legal advice and should not be relied upon.
