Custody FAQs

At what age does the law allow a child to decide which parent to live with?

There is no specific age at which a child may decide which parent to live with. A child's primary residential responsibility preference is given more respect as the child's age and maturity increases. As you'd expect, Courts give more weight to the preference of a child who is seventeen than one who is twelve. Courts seldom-but may-consider children age ten and under to have a sufficient maturity to express a residential responsibility preference. A child's preference will be discounted if it appears "purchased" by a parent's manipulations. Minnesota law gives an older teen's residential responsibility preference much more priority and importance than does North Dakota's.

I am divorced and have primary residential responsibility of my two children. My ex-husband and I live in the same town where we obtained the divorce. I would like to move out of state. Are there any legal concerns of which I should be aware?

Yes, there are. The general rule is that a primary residential parent may not move from the state where the divorce was granted without the consent of (1) the other parent or (2) the court. In fact, a person moving the children without such consent may face criminal prosecution for depriving the other of parental contact. If the other parent will not consent to the move, you must ask the court for permission. In North Dakota, the primary residential parent has the burden of showing the court that the move will be in the children's best interest. In Minnesota, however, the other parent has the burden of showing that the move will be against the children's best interest. In either state, whenever the court grants permission to move, it will also restructure parenting time rights to accommodate the non-moving parent.

If I am concerned about litigating residential responsibility and parenting time issues with my children's other parent, what is the one most important thing I can do to protect myself and children?

Every parent facing the prospect of parenting time litigation should keep a journal. The outcome of any case will likely turn on a multitude of events. The details of those events will have been lost unless written down. Without those details, statements of prior events lose persuasive impact. General statements such as "he always..." or "she never..." do not sway judges. As such, you should record such things as abuse events, the use of bad language, whether parenting times have taken place or been missed or interfered with, whether parenting times have started and ended on time, what a person has done with the kids during parenting times, what kind of care the other parent is providing, and more. If your common sense tells you it is important, write it down as it happens. The details of your memory will be your most powerful evidence.

I have primary residential responsibility of two small children. I have a judgment which grants my ex-spouse parenting time. Unfortunately, he has a terrible time remembering when his parenting times start and end, particularly around holidays, special occasions and in the summer. Too many of our special times are spoiled because of arguments over whether it is his turn or my turn to have the kids or when his parenting times start and end. Do you have any helpful ideas?

Our office uses "Kidmate" software by Lapin Agile. Among other things, this software allows us to print out, in calendar form, every parenting time scheme imaginable. Accordingly, we can now provide our clients a color-coded calendar for the entire year-or beyond-showing when the children will be with each parent. The calendar includes start and end times for regular holiday and summer parenting times. Each parent can simply post the calendar on his or her fridge and both will know exactly when the children will be with mom and when they will be with dad. The calendar can also be used as a journal to record parenting time events, good or bad, as they occur. Our fee for providing this service is quite reasonable.

Can grandparents obtain a Court Order allowing them to spend time with their grandchildren?

Absolutely! Both North Dakota and Minnesota allow grandparents to obtain a Court Order allowing reasonable parenting time with grandchildren. The grandparents do have a burden of proof, however. The grandparents must prove that parenting time (1) will be in the best interests of the children and (2) will not interfere with the relationship between the children and their parents. The Courts generally believe that children benefit from a relationship with extended family members. Accordingly, they are usually receptive to a grandparent's request for parenting time.

My spouse and I are divorcing. We are both employed and have agreed that I will have primary residential responsibility of our children. At the conclusion of our divorce, which of us is most likely to be allowed to claim the children as dependent exemptions for tax purposes?

The IRS Code favors granting the parent with residential responsibility the right to claim the child as a dependent exemption. State law, however, grants trial courts the discretion to award that right to the other parent. Discretion over this issue may be exercised differently from one Judge to the next, making the outcome difficult for lawyers to predict. In exercising such discretion, the Courts are interested in a number of issues: Which party will obtain the greatest financial benefit from claiming a child or children? By virtue of his or her income and reasonable expenses, which party has the greatest need for the exemption? How much monthly child support does the other parent pay? The higher the monthly support obligation, the greater the likelihood the other parent will be granted children as dependent exemptions, at least in alternating years. It is very common for the Courts to require parties to somehow share this tax benefit.

I have primary residential responsibility of two small children. I have a judgment which grants my ex-spouse parenting time. Unfortunately, my ex-spouse and I do not get along and our parenting time exchanges turn into a mess. Do you have any helpful ideas?

Rainbow Bridge Safe Exchange/Visitation Center offers a positive, safe, child friendly and neutral site where children and parents can be assured that a supervised parenting time or exchange will be safe and conflict free. All services provided by Rainbow Bridge are confidential. Rainbow Bridge is located at 715 North 11th Street, Suite 101, in Moorhead, Minnesota. You can reach Rainbow Bridge at (218) 299-7694 or 1 (800) 452-3646, ext. 7694.

My wife and I are contemplating a divorce. I love my children very much and can't imagine not spending most of my time with them. However, isn't it true that moms get residential responsibility of the children?

It may well be true that mothers end up with primary residential responsibility of children more often than fathers - but not because of judicial bias in favor of moms. North Dakota's legislature has said that "[b]etween the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child." N.D.C.C., Section 14-09-06.1. North Dakota's Supreme Court agrees, stating, "the public policy of this state is that there is to be no gender bias in custody decisions regardless of the age of the child." McDowell v. McDowell, 2003 ND 174. Our office has helped many fathers obtain primary residential responsibility of there children. We believe the words of the legislature and the Supreme Court are not empty, but are, in fact, practiced and applied by North Dakota trial courts. In parenting time disputes, the better parent is awarded primary residential responsibility, regardless of gender.