Establishing Custody Without Divorce in North Dakota
In North Dakota, it is possible to establish custody without a divorce. The state’s laws provide for the establishment of custody in situations where parents are separated but not divorced, or in cases where parents have never been married. The North Dakota Century Code provides the legal framework for these situations.
Custody for Unmarried Parents
In North Dakota, if the parents of a child are not married, the mother is automatically given primary physical and legal custody of the child until a court order states otherwise (North Dakota Century Code 14-20-22). The father can file a petition in court to establish paternity and request custody or visitation rights. The court will make a decision based on the best interests of the child.
Custody for Separated Parents
For parents who are separated but not divorced, either parent can file a motion regarding custodial responsibility of a child during the separation period. The motion must be filed in a pending proceeding for custodial responsibility in a court with jurisdiction under section 14 -09.3-03 or, if there is no pending proceeding in a court with jurisdiction under section 14 -09.3-03, in a new action for granting custodial responsibility during separation.
Custody for Nonparents
In certain circumstances, a nonparent may be granted custody or visitation rights. According to section 14-09.4-03 of the North Dakota Century Code, a court may order custody or visitation to a nonparent if the nonparent proves that they are a consistent caretaker or have a substantial relationship with the child and denial of custody or visitation would result in harm to the child. The nonparent must also prove that an order of custody or visitation to the nonparent is in the best interest of the child.
Presumption for Parental Decision
In an initial proceeding under this chapter, a decision by a parent regarding a request for custody or visitation by a nonparent is presumed to be in the best interest of the child (section 14-09.4-04). A nonparent has the burden to rebut the presumption by clear and convincing evidence of the facts required by subsection 1 of section 14 -09.4-03. Proof of unfitness of a parent is not required to rebut the presumption.
Commencement of Proceeding – Jurisdiction
A nonparent may commence a proceeding by filing a petition under section 14 -09.4-06 in the court having jurisdiction to determine custody or visitation under chapter 14 -14.1.
In conclusion, while divorce proceedings often include decisions about child custody, it is not the only way custody can be established in North Dakota. Whether parents are unmarried, separated, or nonparents, there are legal avenues available to establish custody based on the best interests of the child.