Like many states, North Dakota has a long history of allowing certain adults who are not biological parents of a child to gain custody or visitation rights to the child. This right might be granted to a grandparent with a long history of frequent contact and communication with a grandchild, or a biological parent’s boyfriend/girlfriend who has lived with and helped raise a child for many years, as a few examples.

This principle wasn’t created by legislation; there was none. The right sprang from common law (law established by the consistent precedent of courts), in North Dakota Supreme Court decisions going back at least 50 years. However, in 2019 the North Dakota legislature enacted the Uniform Nonparent Custody and Visitation Act which altered and formalized the method of granting custody to a nonparent.

Common-Law “Psychological Parentage” in North Dakota

The North Dakota Supreme Court has afforded nonparents a legal means of obtaining custody or visitation of a child for many years. Initially applied very narrowly, the Court recognized that parents’ rights are superior to any other person, and although the right is not “absolute,” the judiciary is “reluctant to remove a child from the parent’s custody” unless it is “necessary to prevent serious detriment to the welfare of the child.”

Gradually, the nonparent custody/visitation theory evolved into discussions of the North Dakota Supreme Court regarding the “psychological parentage” of the nonparent. Meaning, a person who provides such a high degree of care for a child over a period of time and develops a close relationship with a child, can become a “psychological parent” for that child.

Eventually, the rule became: when a person becomes a psychological parent for a child, by providing daily care and developing a close bond, and the child turns to that person for love, guidance, and security, then the psychological parent can be awarded custody or visitation to prevent serious harm or detriment to the welfare of the child. It was a high bar: 1) the nonparent must have a strong and consistent history of parental-type conduct, 2) the child must treat the person as a parent, and 3) denial of custody/visitation to the nonparent must be so detrimental that it would result in serious harm to the child.

Many other states formed their own rules on nonparent custody/visitation, through legislation or common law, and a considerable disparity resulted.

National Inconsistency

Some states enacted legislation or formed common law similar to North Dakota. Some states developed vastly different nonparent custody/visitation law. And some states did not grant nonparents any type of visitation/custody rights. In 2000, the U.S. Supreme Court was forced to set some outer-limit on nonparent rights, holding that Washington’s nonparent visitation statute was unconstitutional because it placed no limits on the persons who could seek visitation or the circumstances in which their request could be granted.

It became increasingly clear that some manner of guidance and uniformity to the states was necessary. In stepped the Uniform Law Commission, which is a national conference of attorneys, judges, and legislators who are appointed by state governments to research, draft, and promote uniform laws. The ULC drafted the Uniform Nonparent Custody and Visitation Act, which was approved for enactment in all 50 states (although not yet enacted in all states).

The Uniform Nonparent Custody and Visitation Act

In 2019, North Dakota enacted the Uniform Nonparent Custody and Visitation Act (“UNCVA”). UNCVA provides a framework for nonparent custody and visitation, and uses some different terminology than the common law “psychological parentage” rule, although some of the principles of UNCVA echo those from psychological parentage. “Consistent caretaking” or “substantial relationship” ideas remain, as well as the requirement that denial of visitation to the nonparent result in “harm to the child.”

In order to obtain custody or visitation, a nonparent must prove:

1. Custody or visitation to the nonparent is in the best interest of the child.

And

2. That one of the following two elements is true:

a. The nonparent is a consistent caretaker, or
b. The nonparent has a substantial relationship with the child, and denial of visitation/custody would result in harm to the child.

UNCVA does provide definitions for these terms. A “consistent caretaker” is a nonparent who has lived with the child for at least one year, regularly cared for the child, made day-to-day decisions regarding the child, and established a bonded and dependent relationship with the child. Further, the nonparent must have done these things without expectation of compensation (therefore, a babysitter or nanny would not qualify).

A “substantial relationship” is formed when the nonparent has a familial relationship with the child, whether biological (think grandparents, uncles, aunts, etc.) or legal (think stepparent), and a significant emotional bond exists between the two. Again, the nonparent must have done so without expectation of compensation.

If a person can prove either of these things: “consistent caretaker” or “substantial relationship,” then he/she may be granted custody or visitation if the nonparent also proves it is in the child’s best interests.

The best interests factors employed by UNCVA expand on the traditional best interests factors. UNCVA requires courts to consider the traditional factors in N.D.C.C. § 14-09-06.2, but also:

1. The nature and extent of the relationship between the child and the parent;
2. The nature and extent of the relationship between the child and the nonparent;
3. The views of the child, taking into account the age and maturity of the child;
4. Past or present conduct by a party, or individual living with a party, which poses a risk to the physical, emotional, or psychological well-being of the child; and
5. The likely impact of the requested order on the relationship between the child and the parent.

A few other noteworthy provisions of UNCVA:

1. The nonparent can be granted primary residential responsibility, joint custody with the biological parent, or visitation.
2. Modification of the nonparent’s rights follows the standards for typical custody/visitation cases.
3. Child support is not addressed by UNCVA, except to state that the existing North Dakota statutes regarding child support control the issue.
4. A nonparent must file a petition under UNCVA that differs from the typical pleadings of a biological parent seeking custody or visitation and requires specific declarations and factual allegations are made.

Conclusion

The Uniform Nonparent Custody and Visitation Act is a new law, and therefore there is little information or guidance for unrepresented persons to find online or from family and friends who have experienced a similar case. Thus, having an attorney to assist you with nonparent custody and visitation is essential. To speak with an attorney about this or other family law issues, call the SW&L 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.

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