STARTING THE ACTION In 2019, the North Dakota legislature enacted the Uniform Nonparent Custody and Visitation Act found in Title 14 of the North Dakota Century Code, which formalized the legal process for nonparents to obtain custody or visitation. Seeking nonparent custody or visitation rights in North Dakota is a legal process that can be complex and emotionally challenging. It involves starting an action in district court by filing a Petition for nonparent rights. In initiating the action, the nonparent bears the burden to demonstrate to the court that granting such rights is in the best interest of the child. A nonparent is the official term used in North Dakota law for an individual other than a biological parent of a child. N.D.C.C. § 14-09.4-01(7). North Dakota law tells us that in order for a nonparent to be considered for custody and/or visitation, they must first allege a few factors in their Petition. The nonparent must allege the following:
• The nonparent is a consistent caretaker. • The nonparent and the child have a substantial relationship, and denial of custody or visitation would result in harm to the child. • An order of custody or visitation to the nonparent is in the best interest of the child. Easy enough, right? Not quite. The law specifically defines each of the aforementioned and provides standards for what it means to be a consistent caretaker, what it means to have a substantial relationship, and what it means to be in the best interest of the child. A consistent caretaker for the purpose of custody/visitation means an individual without expectation of compensation who has lived with the child for not less than 12 months (unless the court finds good cause to accept a shorter period); regularly exercised care of the child; made day-to-day divisions regarding the child solely or in cooperation with an individual having physical custody; and established a bonded relationship with the child
with the express or implied consent of the parent or without the consent of a parent if no parent has been able or willing to perform parenting functions. N.D.C.C. § 14-09.4-03(2). A substantial relationship for the purpose of child custody/visitation with the child is defined as one where the nonparent is an individual with a familial relationship with the child by blood or law; or formed a relationship with the child without the expectation of compensation; and a significant emotional bond exists between the nonparent and child. N.D.C.C. § 1409.4-03(3). When it comes to the Best Interest of the Child a court will consider the seven factors outlined in N.D.C.C. § 1409.4-03(11). They are: • The nature and extent of the relationship between the child and the parent; • The nature and extent of the relationship between the child and the nonparent;
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