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North Dakota courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. There are no published cases dealing with transgender parents or same-sex co-parents.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
North Dakota courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.
North Dakota law states: “For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable: a) The love, affection and other emotional ties existing between the parents and child; b) The capacity and disposition of the parents to give the child love, affection and guidance and to continue the education of the child; c) The disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs; d) The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity; e) The permanence, as a family unit, of the existing or proposed custodial home; f) The moral fitness of the parents; g) The mental and physical health of the parents; h) The home, school and community record of the child; i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference; j) Evidence of domestic violence; … k) The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault or the fear of physical harm, bodily injury or assault, on other persons; l) The making of false allegations not made in good faith, by one parent against the other, of harm to a child; … m) Any other factors considered by the court to be relevant to a particular child custody dispute. …
“The court, at any stage of the proceedings after final judgment, may make orders about what security is to be given for the care, custody and support of the unmarried minor children of the marriage as from the circumstances of the parties and the nature of the case is equitable. …
“Unless agreed to in writing by the parties, no motion to modify a custody order may be made earlier than two years after the date of entry of an order establishing custody. … Unless agreed to in writing by the parties, if a motion for modification has been disposed of upon its merits, no subsequent motion may be filed within two years of disposition of the prior motion. … The time limitation … does not apply if the court finds: a) The persistent and willful denial or interference with visitation; b) The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or c) The primary physical care of the child has changed to the other parent for longer than six months. …
“The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and: a) The persistent and willful denial or interference with visitation; b) The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or c) The primary physical care of the child has changed to the other parent for longer than six months. …
“The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds: a) On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and b) The modification is necessary to serve the best interest of the child. …
“The court may modify a prior custody order at any time if the court finds a stipulated agreement by the parties to modify the custody is in the best interest of the child. …
“Upon a motion to modify custody under this section, the burden of proof is on the moving party.”
In a 2003 case, Damron v. Damron, a father had petitioned the court for a change in custody, arguing that he was entitled to custody because his ex-wife had begun living with her same-sex partner. The trial court granted the father’s petition for a change in custody, finding that the “children’s present environment [living with their mother and her same-sex partner] may endanger the children’s emotional health or impair the children’s emotional development.” The state Supreme Court reversed this order, stating that there was no evidence that the mother’s environment endangered the children. Moreover, the court held: “A custodial parent’s homosexual household is not grounds for modifying custody within two years of a prior custody order in the absence of evidence that environment endangers or potentially endangers the children’s physical or emotional health or impairs their emotional development.”
In a 1993 case, Johnson v. Schlotman, a trial court temporarily terminated a mother’s visitation rights and denied her motion for a change in custody. The state Supreme Court agreed with the lower court that it was in the best interests of the children to remain with their father, and that the trial court had ample evidence to grant custody to the father even if it ignored the mother’s sexual orientation. However, the state Supreme Court found that the trial court “overstepped its bounds” when it terminated all visitation by the mother. The court stated that to justify this “onerous restriction,” the court had to find that visitation would result in physical or emotional harm, and, although the children were confused by their mother’s sexual orientation, it did not rise to the level of endangerment.
In a 1981 case, Jacobson v. Jacobson, the North Dakota Supreme Court affirmed a trial court’s decision to grant custody to a heterosexual father instead of a lesbian mother. The trial court emphasized that the mother lived with her same-sex partner, and it was concerned that the children would be forced to “suffer from the slings and arrows of a disapproving society” if they lived with their lesbian mother and her partner. Therefore, the court ruled, it was in their best interests to live with their father. This case was overruled by Damron v. Damron.
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
There are no reported or published opinions dealing with same-sex co-parents.
Citations: N.D. CENT. CODE §14-09-06.2; N.D. CENT. CODE § 14-09-06.6; Damron v. Damron, 670 N.W.2d 871 (N.D. 2003); Johnson v. Schlotman, 502 N.W.2d 831 (N.D. 1993); Jacobson v. Jacobson, 314 N.W.2d 78 (N.D. 1981).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Updated: Mon, December 19, 2005 - 12:00:11
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