The most agonizing part about divorce is when children are involved. For so many parents, they can't imagine going half a week, all week, or longer before seeing their child again. It's a difficult thing to get used to for just about anyone, whether you are the father, the mother, or the child.
It's true, too, even when you haven't been married but you have a child with another person and that relationship ends. Both parents under most circumstances will have some form of custody or visitation rights, and the custody process for unmarried couples and their child can be just as traumatizing.
With the help of a compassionate yet firm child custody attorney, the process can be made a little less complicated and stressful. Pamela Coleman, an experienced family law attorney, aims to help her clients understand what's in the best interest of the child, what rights the parents have, and how to de-escalate situations when they get complicated due to high emotions, bitterness, anxiety, among other things. Below is a brief overview of child custody laws. If you are seeking custody, contact Pamela Coleman to get the legal guidance you and your child deserve.
What rights and responsibilities do parents have regarding child custody?
Child custody is now typically referred to as parental rights and responsibilities in North Dakota. This page discusses North Dakota Law. Please consult Coleman Family Law for custody in Minnesota.
The judge issues a child custody order that outlines who has decision-making responsibility and who has residential responsibility.
Decision-making responsibility is the parents' right to make decisions that concern the child. These decisions refer to all aspects of the child's life, like:
- education, e.g., where the child will attend school;
- medical care, e.g., should the child undergo surgery for a certain medical condition or should the child get the flu vaccine;
- religion, e.g., will the child be brought up by the guidance of a certain religious belief.
Residential responsibility typically refers to which parent provides a home for the child. Many times parents shared this responsibility 50/50. When one parent has more than 50% of the residential responsibility, that parent has primary residential responsibility and is referred to as the custodial parent.
What is Parenting Time & How Does a Parenting Plan Work?
Parenting time is the time the child is in the care of a parent. A parenting schedule is laid out in the parenting plan and details when exactly the child is with each parent, including holidays, school breaks, birthdays, among other important days.
In addition to parenting time, the parenting plan describes each parent's responsibilities. Typically, both parents work together to develop a parenting plan. If you can and do agree, the parenting plan is submitted to the judge and the judge will implement it as part of the court order. When parents can't agree on the terms, the judge will create the parenting plan based on the best interest of the child.
A parenting plan typically should include the following:
- decision-making responsibilities for day-to-day decisions
- decision-making responsibilities for major decisions, like those listed above: education, health care, and religion
- how each parent will share information and have access to the child, e.g., by phone, email, FaceTime, or another method
- the child's legal residence for purposes of school attendance
- residential responsibility
- parenting time
- parenting schedule, including holidays, weekends, vacations, etc.
- how the child will be transported and exchanged from one parent to the other parent
- how the parenting plan will be reviewed and adjusted when necessary
- how disputes about the plan or the child will be resolved.
As you can see, a parenting plan is quite complex and comprehensive. It may take a lot of work, mediation, and negotiation to come to an agreement so that a judge will not make the decisions for you.
Once the parenting plan is established and becomes a part of a court order, you must follow the plan accordingly. From time to time, if the parents agree, you can make slight changes to accommodate parent schedules. If significant changes are required on a more permanent basis or a parent doesn't agree, then you may be able to request a modification to the Court. A hearing would be set and the judge will consider your arguments for modifying the parenting plan. If it has been less than two years since you modified your parenting plan, there are specific requirements you must meet in order to modify your parenting plan.
What is mediation?
In any case involving minor children, the court will order the parties to participate in the Family Law Mediation Program. Mediation can be helpful, but there are certain cases where mediation is not appropriate, such as cases involving domestic violence. In mediation, a neutral third party moderates the conversation between you and the other parent to attempt to come to an agreement. Mediation takes place privately, but your lawyer is allowed to accompany you, which is recommended under some circumstances. If you cannot agree, your case will proceed through the court calendar and may end up in a trial, which can be a lengthy and expensive process.
Who Can Get Custody or Visitation?
Parents always have the first right to custody of their children. Sometimes, however, a court could order custody or visitation to non-parents.
In exceptional circumstances – when there's evidence the parents could seriously harm the child – the judge may award custody to a non-parent. A non-parent could be another relative, like a grandparent, or it could be a state agency.
In other circumstances, where the non-parent proves that custody or visitation is in the child's best interest, a court can award custody or visitation even if the parents disagree. In these types of cases, the non-parent must also prove one of the following:
- the non-parent has been the child's consistent caretaker; or
- the non-parent has a substantial relationship with the child and to deny contact would result in harm to the child.
How Does the Custody Process Work?
Typically, the custody process begins with filing a Summons and Complaint to establish custody (for non-married parties) or through the divorce process (for married couples). Copies of the Summons and Complaint must be served on the other parent. The other parent has time to answer the Complaint. Once the Summons and Complaint are filed with the Court, your case will automatically be ordered to the Family Law Mediation program.
It is important to keep in mind that the core of the custody process centers on the best interests of the child. The court has specific factors to consider, which most often includes factors like:
- love, affection, and emotional ties between the parent and child;
- the parent's ability to care for the child;
- the parent's ability to meet the child's developmental needs;
- stability and sufficiency of each parent's home environment;
- the willingness of the parent to facilitate the child's relationship with the other parent;
- the moral fitness of the parents;
- the mental and physical health of the parents;
- history of any domestic violence;
- presence of any false accusations; and
- much more.
Who Should I Contact about a Child Custody Case in North Dakota or Minnesota?
If you are seeking or intending to seek custody of a child, contact an attorney who specializes in family law. Pamela Coleman has extensive experience in helping parents obtain custody of their children. At Coleman Family Law, we listen to your case-specific requests, advise you on your rights and develop a strategy that promotes the best possible outcome under the facts of your case. Working compassionately to resolve issues, yet aggressively when required to ensure your parental rights and responsibilities are being met. Contact Coleman Family Law today to get started on your case.