Discover the seven key differences between legal vs. physical custody in Bismarck, ND, to make informed decisions in custody cases. Click to learn more!
The latest report from the U.S. CDC shows that North Dakota had a 2.7% divorce rate in 2022, which is lower than the divorce rate of its neighboring state, Wyoming. However, it’s higher than nearby states such as South Dakota and Montana.
If you’ve also been through or are going through a divorce in Bismarck, ND, it’s imperative to know your parental rights. Part of this is to learn how the state differentiates legal vs. physical custody. By knowing what sets the two apart, you can take immediate action if the court awards you a type of custody you believe doesn’t align with what you should otherwise get.
In this guide, the team at Heartland Law Office will explore the chief differences between these two types of child custody. So please read on, as what you discover here can help you better navigate this particular aspect of family law.
1. How ND Calls Them and What They Entail
In North Dakota, child custody laws are within the scope of ND Century Code Chapter 14-09 (Parent and Child). Under this, the first critical difference between legal and physical custody is how the state refers to them legally.
Per North Dakota Courts, ND uses the term “decision-making responsibility” to refer to legal custody. On the other hand, the legal term for physical custody in the state is “residential responsibility.”
In Bismarck, ND, legal custody, or decision-making responsibility, concerns parents’ rights and obligations to make critical decisions about their children’s lives. On the other hand, physical custody, or residential responsibility, pertains to the parent with whom a child lives.
2. Matters Involved With Decision-Making Responsibility
Per North Dakota Century Code § 14-09-00.1, decision-making responsibility can refer to a parent’s rights and obligations to decide on all or only specific issues concerning their child’s life. Under ND Cent. Code § 14-09-30, the matters on which a parent with legal custody may decide are routine or daily and significant decisions, including:
- Spiritual development or religious upbringing
- Education, such as which school a child attends
- Medical treatment, such as if a child should undergo surgery
Under ND Cent. Code § 14-09-30, parents must also develop a parenting plan outlining their child custody decisions and file it with the court. The plan must specify the specific matters they’ll decide on for their child. If the parents can’t agree, the court will create a plan that considers the child’s best interests.
3. Custodial vs. Noncustodial Parents in Primary Residential Responsibility
Per ND Century Code § 14-09-33, a custodial parent is the parent with primary physical custody or residential responsibility. A custodial parent bears more than 50% of the residential responsibility. By contrast, a parent with less than half of the residential responsibility is a “noncustodial parent.”
Parents can also decide to have “equal residential responsibility.” In this scenario, their child will live with each parent for a similar or equal time.
4. Joint Custody vs. Sole Custody
Joint custody is often the preferred parenting plan in North Dakota and Bismarck. Indeed, North Dakota family law supports shared custody agreements. With a shared parenting plan, both parents have equal or nearly similar decision-making responsibilities, residential responsibilities, and parenting time.
It’s also vital to note that joint custody can be specifically for decision-making but not residential responsibilities. For example, parents can have joint legal custody even though the child primarily lives with one parent.
On the other hand, sole custody awards only one parent with legal, physical, or both types of custody. Although it can happen, the court often uses this route only if the other parent is unfit. For instance, if there is evidence that the other parent has committed domestic violence or abuse.
5. Time Spent With Children
Under ND law, a parent with primary physical custody will spend more time with their child than the other parent. For example, if they bear 75% of the residential responsibility, their child will be with them 75% of the time. The child will then spend the rest (25%) of their time with the noncustodial parent.
The time that Bismarck parents with legal custody or decision-making responsibility get to spend with their child depends on their physical custody rights. They can have many decision-making responsibilities and rights but only get less than 50% of their child’s time.
6. Parenting Time or Visitation Rights
Visitation, called “parenting time” in North Dakota, typically applies to physical custody agreements. ND Cent. Code § 14-05-22 summarizes the awarding process for parenting time in the state.
For example, suppose the court awards one parent primary residential responsibility. In this case, the noncustodial parent can request parenting time. The court usually grants it to help the child maintain a beneficial relationship with the noncustodial parent.
7. Factors Considered in Granting Either Custody
Under ND Cent. Code § 14-09-06.2, the court must always prioritize and consider a child’s best interests when deciding parental rights and responsibilities. They consider many factors that apply to both decision-making and residential responsibilities. Some examples are:
- The parent-child relationship, including the affection, love, and emotional ties between the two
- A parent’s ability to nurture, love, guide, and show affection to their child
- A parent’s ability to ensure the child receives their fundamental needs (e.g., food, clothing, shelter, healthcare, and a safe living environment)
- The child’s present and future developmental needs and if a parent can meet such needs
- The stability and sufficiency of a parent’s home environment
- A parent’s mental and physical health and moral fitness
Because North Dakota supports shared parental responsibilities, even if the court awards one parent with primary residential responsibility, it also often awards the other parent decision-making responsibilities.
Legal vs. Physical Custody: Now You Know
As you learned in this legal vs. physical custody guide, North Dakota calls the former decision-making responsibility, while it refers to the latter as residential responsibility. You also discovered that the court often encourages parents to share custodial rights and duties. However, parents can file for primary or sole custody because doing so isn’t always in the child’s best interest.
If you need expert custody legal advice in Bismarck, ND, the experienced Heartland Law Office PC lawyers specializing in family law can help. With over a dozen years of criminal and civil law courtroom experience, you can rely on us for the professional legal guidance you need over child custody matters.
Request your case evaluation today to get started!