By: Bryan Green, Family Law Attorney at SW&L Attorneys
Co-parenting is one of many things that people must consider when agreeing to any custodial arrangement. For some people, equal residential responsibility (joint custody or 50/50) is what the parties agree is best for their child(ren). But, equal residential responsibility typically works best when parents live in the same area. Even though parents could, and often do, agree to a custody arrangement, life is unpredictable. One parent may move to another part of North Dakota, but the co-parents are still obligated to follow their parenting plan. This creates a situation that may invite conflict because of the increased cost of transportation or the amount of time it takes to exchange the child(ren) with the other parent.
North Dakota law does not stop your co-parent from moving across the state of North Dakota with your child. N.D.C.C. § 14-09-07 restricts only interstate relocation. It says nothing about a move from Fargo to Williston, which is more than 400 miles and would gut a mid-week parenting time schedule just as effectively as a move to another state. If you want a geographic limit inside North Dakota, you have to negotiate it into your parenting plan. A well-drafted proximity restriction, sometimes called a geographic restriction, is the tool that fills that gap.
At SW&L Attorneys, our family law team negotiates and litigates parenting plans for clients across North Dakota. This article explains what a proximity restriction does and why it may be worth entertaining. This article does not analyze out-of-state-moves but rather explores the implications of in-state moves that make a parenting plan difficult, if not impossible, to follow.
What Is a Proximity Restriction in a Custody Agreement?
A proximity restriction is a term in a parenting plan that limits how far a parent may move the child’s residence without the other parent’s consent or a court order. It is typically written as a measured radius from a fixed reference point. For example, “neither party shall relocate the child’s primary residence more than 50 miles, measured by straight-line distance, from the child’s current elementary school without the prior written consent of the other party or an order of the court.”
The purpose is not to trap anyone, but rather to protect the parenting time schedule the two parents just spent months building. A 50/50 or week-on/week-off arrangement, a mid-week overnight, or a schedule that depends on both parents attending the same school events only works if both parents live within a reasonable drive of each other and of the school. A proximity restriction preserves the factual conditions that made your agreement workable in the first place.
Why Negotiate This Into a Stipulated Agreement Instead of Dealing With It Later?
A stipulated agreement is the one moment when you have leverage and your co-parent has a reason to be reasonable. Once the decree is signed, adding a geographic restriction requires either your co-parent’s agreement or a successful motion.
Two more practical reasons. First, a proximity restriction is far cheaper than the litigation it prevents. Second, it forces a conversation you should be having anyway. Where will this child go to school? What happens if one of us gets a job offer in Bismarck/Fargo/Grand Forks/Minot? What does our schedule look like if we are two hours apart instead of ten minutes? Working that out at the negotiating table, when both of you are focused on the child(ren), produces a better answer than working it out under deadline pressure after someone has already accepted a job.
Be realistic about what you are getting. A proximity restriction is not a guarantee your co-parent will never move. What it gives you is a specific court order, an enforcement mechanism, and the right to be heard before the move rather than after it.
Frequently Asked Questions (FAQ’s) About Proximity Restrictions in North Dakota Custody Agreements.
Q. Can my co-parent move anywhere in North Dakota with our child?
Generally, yes, unless your parenting plan says otherwise. N.D.C.C. § 14-09-07 restricts only moves to another state. There is no statutory approval requirement for a move within North Dakota. Your existing parenting plan still binds both of you, though, and a move that materially disrupts court-ordered parenting time may result in conflict or future litigation between the co-parents.
Q. “From which point should the proximity restriction be measured?”
The child’s school or school district is usually the strongest anchor, because N.D.C.C. § 14-09-30 already requires every parenting plan to address the child’s legal residence for school attendance. That gives the clause a fixed, statutorily grounded reference point that does not move every time a parent changes apartments or buys a new home.
Q. We already have a decree with no geographic term. Can we add one now?
You can, but it takes either an agreement between the two of you submitted to the court for approval, or a motion. If your co-parent will agree, a stipulated amendment to the parenting plan is by far the simpler route.
If you want to talk about adding a proximity restriction to your parenting plan, or you are dealing with a co-parent who has moved, please contact SW&L’s family law team at 701-297-2890 or email us at: info@swlattorneys.com.
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