Understanding Legal vs Physical Custody for Parents in North Dakota
Understand legal vs physical custody to make informed decisions. Find out which applies to your situation. Click for detailed insights.
As of 2021, the divorce rate in North Dakota was around 2.9% according to World Population Review. While this doesn’t seem too high, every one of these divorces comes with challenges.
The most difficult divorces are often ones that involve children. When parents stop seeing eye to eye, it can be very difficult to determine what should be done.
There are two key types of child custody. When looking at legal custody vs. physical custody, the parents may not always agree. A judge will usually have to make a decision based on both sides.
In this guide, we’ll look at these two paths as well as how custody is determined. Keep reading for more.
Types of Child Custody in North Dakota
Child custody laws can vary depending on the state. In North Dakota, the two types are legal custody and physical custody, but the state also now uses the overall term “parental rights and responsibilities” rather than custody.
Additionally, the term “decision-making responsibility” can replace legal custody, and “residential responsibility” can replace physical custody. Despite these name changes, the concepts are the same for the most part.
Legal Custody Details
Legal custody relates to a parent’s right to make important decisions about their child’s life. It often relates to aspects such as:
- Education
- Religious upbringing
- Medical treatment
Generally, judges prefer that parents share this responsibility and work together to make decisions for their children. This approach helps ensure both parents play an active part in their child’s life.
However, if a judge determines that it’s in the child’s best interest for one parent to make these decisions for the child over the other, then they may grant them full legal custody. In North Dakota, judges must consider any history of domestic violence when it comes to this decision.
In some cases of joint decision-making responsibility, the judge might delegate specific issues to certain parents. For example, one parent may be responsible for decisions about the child’s religious upbringing and the other might make decisions regarding their education.
Additionally, a judge may order that one parent makes a tie-braking decision in circumstances where both parents have decision-making responsibility but they can’t come to an agreement.
Physical Custody Details
Physical custody is a bit more simple as it relates to where the child lives. In the event of a divorce, it’s very unlikely that the parents will continue to reside in the same residence, so they need to come to a decision about which parent the child will stay with.
In many cases, each parent will want physical custody. The judge will need to look at the case carefully to determine what’s best for the child.
The parent with primary responsibility will have the child more than 50% of the time and is known as the custodial parent. The other parent is the noncustodial parent, even if the child still spends a reasonable amount of time living with them (i.e. if it’s a 75%, 25% split, the parent with the child 25% of the time is the noncustodial parent).
Note that the parents may have joint physical custody (also called equal residential responsibility). This is if the child spends roughly the same amount of time living with each parent.
Parents Rights and Responsibilities
In North Dakota, the law states that each parent of a child has the following rights:
- To see (and get copies of) the child’s medical, educational, religious, dental, and other records
- To have reasonable contact with the child by phone, email, text, letter, etc.
- To attend educational conferences concerning the child
Along with this, each parent also has certain responsibilities, including:
- Immediately informing the other parent of a serious accident or serious illness that requires health care treatment
- Immediately inform the other parent of current addresses and telephone numbers, along with any changes
- Keeping the other parent informed of the child’s school
While these rights and responsibilities are in place in most cases, a judge may restrict or exclude them if they feel the need to do so. They have to provide a reason along with the decision of the order. Again, the judge must factor in any history of domestic violence involving the parents when making this decision.
Plans and Arrangements
The option of both parents agreeing is always there, so they may be able to decide the custody roles between them. In most divorce cases, they come to an agreement eventually, and this helps save the time, cost, and stress of a trial.
If the parents want to make their agreement part of a court order, they need to create and submit a parenting plan that contains all the necessary details. Judges will approve these in most cases, as long as the agreements seem to be in the child’s best interests.
In North Dakota, a parenting plan must contain the following:
- Allocation of responsibility for day-to-day decisions
- Allocation of responsibility for major decisions
- Information sharing and access
- The child’s legal residence for school enrollment
- Where the child will live (the parent’s residential responsibility)
- Transportation and exchange of the child between the parents
- A schedule for parenting time covering weekdays and weekends, summers, holidays, vacation planning, and birthdays
- Methods the parents will use to resolve future disputes in the agreement
- A procedure for reviewing and adjusting the plan if need be
Ideally, the plan should be as detailed as possible. The clearer it is, the less chance there will be of any confusion or disputes. It must include explanations for any missing provisions.
Legal Assistance for Legal Custody vs. Physical Custody
These physical and legal custody basics should give you a better understanding of divorce cases and legal custody vs. physical custody overall. However, it’s important to remember that every case is different and things can get very complicated.Having an experienced family lawyer in your corner can help ensure the process goes asa it should.
Heartland Law Office is a BBB-accredited law firm based in Bismarck, ND. We can provide trustworthy legal representation throughout the entire divorce process, helping you understand every step.
We maintain honesty and always aim to set reasonable expectations to help ensure the best outcome in every case. Contact us today to request a case evaluation.