After practicing family law for over a decade it has become clear that certain questions arise over and over again when it comes to listening to cold callers regarding certain areas of the law. This week I am addressing those questions that typically come up when I am discussing a potential custody action with a potential client who is about to go through a custody action.

What Factors Will The Court Consider When Determining Custody?

In North Dakota, your case will be heard by a district court judge. This judge will make a determination regarding custody by determining which living arrangement is in the child’s best interests. To do this the judge will consider and weigh 13 different factors, called the “best interest factors.” See North Dakota Century Code 14-09-06.2. These factors include each parent’s ability to assure the child receives adequate food, clothing, and shelter. These factors also address each parent’s stability in relation to their home environment and their willingness to foster a relationship with the other parent. And, yes, the Court will also look at the preference of the child. I often get asked about this factor in particular, which is why I dedicated an entire blog article to it, which can be found here. When it comes down to it, the Court will need to consider all of the best interest factors but does not need to give each factor the same weight. In other words, a party may be awarded primary residential responsibility, or what is commonly referred to as “primary custody,” by the Court weighing only 3 factors in his or her favor because the judge felt those particular factors carried significant weight.

Which Parent Will Most Likely Get Custody — The Mother Or The Father?

Here, the old adage: “the law is blind,” really does ring true. As described above, the law the court is to consider is set up in such a way that a person’s gender should not determine the outcome of the case. That being said, there is a common belief that females obtain custody more often than males. Although this may be the case, it is not a by-product of a corrupt or an unjust system as some would like to believe. I believe that this may be the case due to the fact females are still predominantly in the role of the “primary caretaker” in our society. When studying the best interest factors, it is plain to see they favor the person who is in the role of the child’s primary caretaker. As such, whether you are the male or the female in your relationship, the law will favor the parent who is doing the majority of the caretaking for the child, not a particular gender.

What Are The Chances The Court Grants Us 50/50 Custody?

The chances of the court granting an equal 50/50 residential responsibility/custody arrangement are low. What I tell people is that you have a better chance of obtaining primary custody than you do obtaining equal residential responsibility, no matter what the circumstances of your case are. Why? Because the current state of the statutory law and the case law in North Dakota favors a court picking one parent over another. This does not mean it cannot happen, and it does happen; it is just that the odds of a judge ordering an equal custody arrangement are fairly low. In fact, there is empirical evidence to back this up. Although there has been a movement in North Dakota to try to amend the way the court is to make a custody decision, it has not yet been successful. If you are interested in reading more about this topic, you can read our blog articles on it here.

If We Have 50/50 Custody, Do We Have To Pay Each Other Child Support?

If the court grants you equal residential responsibility, or if you agree to an equal residential responsibility schedule (which I see more and more often), the chances are that someone will still have to pay child support. First, contrary to popular belief, there is no law or rule that says “when parties have equal time, there shall be no child support.” Second, the North Dakota child support guidelines state that in equal residential responsibility cases child support should be calculated for each party and then the lesser obligation should be subtracted from the greater. In other words, your attorney or the court will need to find out what each parent would normally owe if the other parent had been awarded primary custody. Then, whoever has the higher obligation will have to pay the difference between the two obligations. For example, Tammy’s obligation is $500 a month. Johnny’s obligation is $200 a month. Tammy would owe Johnny $300 a month. A lot of factors go into one of these calculations and so it is best to consult an attorney regarding the same.

If The Court Grants The Other Party Primary Residential Responsibility/Custody, How Much Parenting Time/Visitation Will I Get?

North Dakota law states that “after making an award of primary residential responsibility, the court, upon request of the other parent, shall grant such rights of parenting time as will enable the child to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that such rights of parenting time are likely to endanger the child’s physical or emotional health.” So what does that mean? It means the court will attempt to make a schedule for you that is also in the child’s best interests. That may vary from 49% of the time to hours of visitation a week, supervised.

Conclusion

An initial custody action can be daunting when not knowing what to expect. If you are entertaining the idea of pursuing a custody action it is worth your while to speak with an experienced attorney.

You can reach the Family Law Team here at SW&L to discuss your potential custody matter at 701-297-2890 or you can email us via the contact form below.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice.

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