Introduction

With Fargo and Moorhead sharing a border, moving between the states of North Dakota and Minnesota is frequent and effortless for families.  This is also common for those who live in Grand Forks and East Grand Forks. However, the seemingly easy move down the street can raise significant jurisdictional issues in a child custody action. North Dakota and Minnesota are easy examples, but these same jurisdictional issues arise no matter what state a parent/child is moving from. As a result, one of the most important questions an attorney can ask a potential client before being hired on a child custody matter is how long the child has lived in the state. The answer to that question is determinative of whether North Dakota (or another state) has jurisdiction to hear the case.

Are these same jurisdictional issues raised if one parent already has a custody order from another state? Most likely, but it also depends on the specific facts of your case. This blog provides a basic guide for parents who want to determine which state has jurisdiction over their child custody matter.

First Things, First

Before you do anything else, you must examine the governing law over child custody matters in your state. North Dakota custody laws are guided by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), enacted in North Dakota in 1999 and codified in North Dakota Century Code § 14-14.1. Nearly every state has adopted the UCCJEA as the act helps promote uniform jurisdiction and enforcement rules in interstate custody and visitation cases, as well as helps minimize parental kidnapping. One of the most critical aspects of the UCCJEA is that it confers subject matter jurisdiction over custody issues and gives priority and exclusive continuing jurisdiction to the child’s home state.

Why Subject Matter Jurisdiction Matters

Subject matter jurisdiction is the court’s power to hear and decide the general subject involved in the case. North Dakota Rules of Civil Procedure, Rule 12(h)(3) tells us that a court must dismiss an action if at any time it determines it does not have subject matter jurisdiction over the case. Subject matter jurisdiction cannot be conferred by the parties’ agreement, consent, or waiver. Because of this significance, child custody matters must follow N.D.C.C. § 14-14.1 and the rules of a child’s ‘home state’ in order to file an action in North Dakota.

Initiating A Custody Dispute: Home State And The Six-Month Rule

In North Dakota, the court “must determine whether it has jurisdiction [as the child’s home state], and if it finds that it does, it then must determine whether there is a custody proceeding pending or a decree made by another state that has jurisdiction”

N.D.C.C. § 14-14.1-01(6) explains that the child’s home state is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.”

N.D.C.C. § 14-14.1-12 tells us that North Dakota can exercise jurisdiction to make an initial custody determination in 4 scenarios:

• If it is the child’s home state on the date the case is filed or the home state of the child within six months before the case started and at least one parent continued to live in the state during the child’s absence. (emphasis added); or

• A court of another state doesn’t already have jurisdiction as the home state of the child or the child’s home state has declined to hear the matter based on another state being more appropriate, and so long as at least one parent lives in North Dakota, and where most of the evidence concerning the child’s care, protection, training, and personal relationships is in North Dakota; or

• If all the courts having jurisdiction under options a and b, have declined to hear the case on the grounds that North Dakota is the more appropriate court to hear the case; or

• No other court would have jurisdiction under a,b, or c.

The most common scenario is based on subsection (a). Suppose a court determines that your child has lived in North Dakota for six months consecutively. In that case, it can move on to make an initial custody determination so long as there isn’t already a custody order pending or in place from another state. The easiest way to read this statute is that you shouldn’t file a case in North Dakota if your child has not lived here for six consecutive months. If you do, a court will likely dismiss the action for lack of subject matter jurisdiction.

Alternative Scenarios

What if a custody/visitation order is already in place from a different state – Can North Dakota modify it?

The UCCJEA can once again help us tackle how to answer that question. This scenario is one that the UCCJEA specifically contemplated in its enactment because one of its goals is to ensure stability and continuity in the child’s environment. It also aims to set parameters so parents cannot hop around from state to state and engage in jurisdictional forum shopping and parental kidnapping.

N.D.C.C. § 14-14.1-14 tells us that in most cases, North Dakota does not have jurisdiction to modify a child custody determination made by another state unless:

North Dakota also has jurisdiction to make an initial determination under subsection (a) or (b) of  N.D.C.C. § 14-14.1-12 (i.e., the home state rule) and

• The other state court (the court that issued the order) determines that it no longer has exclusive, continuing jurisdiction over the matter or that North Dakota would be the more convenient state to hear the case; or

• North Dakota or the other state (the court that issued the order) determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state. 

In short, yes, once you move to North Dakota, you can attempt to modify a custody order from another state so long as the child has lived in North Dakota for at least six months and the initial court gives its jurisdiction away because it is no longer convenient or North Dakota determines that none of the parties are living in the initial state. In other words, the other state and North Dakota would have to agree that North Dakota will take over jurisdiction before an existing order can be modified.

What if a custody/visitation order is already in place from a different state – Can North Dakota enforce it?

Yes, North Dakota can enforce a custody order from another state. N.D.C.C. § 14-14.1-26. However, the order from the issuing state must be registered in North Dakota to do so. The rules for registering an out-of-state order can be found in N.D.C.C. § 14-14.1-25. The rules explain that a request must be sent to a North Dakota district court, including the following:

1. A letter or other document requesting registration
2. Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration, the order has not been modified; and
3. The name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.

Once the North Dakota court receives the request, North Dakota will cause the determination to be filed as a foreign judgment and provide notice to the parties. A party looking to contest the validity of a registered order must request a hearing within 21 days of receiving notice of the registered order.

Conclusion

There are many considerations to be made before deciding whether to file a custody case in North Dakota. Seeking legal counsel and guidance from experienced family law attorneys will ensure compliance with state laws and give you the support you need to navigate your child’s best interest.

For any questions you have regarding jurisdiction or other family law issues, contact SW&L’s family law team at 701-297-2890 or email us at: info@swlattorneys.com. The information contained in this article and on this website is for informational purposes only. Do not rely on the information on this website as legal advice. Please refer to the full disclaimer here.