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Nonparent Custody Act

On Behalf of | Apr 13, 2020 | Family Law

It Takes a Village North Dakota has taken steps which allow third parties (a/k/a “nonparents”) to obtain custody of a child through N.D.C.C. § 14-09.4-03.  This means a child’s “village” (typically a grandparent, aunt, uncle, neighbor, etc.) can step in and provide the care a child needs without the involvement of social services.  The core of the Nonparent Custody Act is Section 14-09.4-03(1), which states: (1) A court may order custody or visitation to a nonparent if the nonparent proves: a. The nonparent:
(1)  Is a consistent caretaker; or (2) Has a substantial relationship with the child and denial of custody or visitation would result in harm to the child; and b.  An order of custody or visitation to the nonparent is in the best interest of the child. In Plain Language  In Subsection
(1)(a)(1), which allows a nonparent who has already been a “consistent caretaker” for a child is, frankly, a long time coming. While every case is unique, the typical situation is this:
Mom and/or Dad have been unable to care for their child for quite some time causing Grandma and Grandpa to step in.  The grandparents raise their grandchild(ren) for a significant length of time, sometimes even years.  There is no formal agreement or court order and the grandparents do not receive child support.  At some point, one or both of the parents decide they want to resume their role of full-time caregivers even though they are not capable of doing so, or, even if they are capable, have been out of the picture for so long removing the child from his/her grandparents would be traumatizing.
This type of situation can result in extreme trauma to the child and, unfortunately, is not uncommon.  Further complicating matters is that, often, a parent doesn’t actually want to take his/her child back, they only want to use that child as leverage to get what they want.  This is especially true if the parent is struggling with substance abuse. The parent will sometimes ask the nonparent for money or other support.  When the nonparent refuses, the parent will threaten to “take the child back.” The nonparent is then caught in a no-win situation of trying to protect the child, but not wanting to be manipulated by the parent. Under the new Nonparent Custody Act, a nonparent who has already been providing “consistent care” for a child may petition the court for custody of that child. This frees the nonparent from the manipulative acts of the parent and allows the nonparent to focus their energy on the well-being of the child.  Most importantly, this ensures the child receives consistency and stability, and, in my opinion, is a long time coming.

“A non parent who has already been providing “consistent care” for a child may petition the court for custody of that child.”

A Groundbreaking Law

With that being said, it is subsection (a)(2), which is the most groundbreaking.  Under this subsection a nonparent doesn’t even have to be a “consistent caretaker” to petition for custody.  Again, although every case is unique, the typical scenario is this:  Mom and/or Dad have been consistently providing care for a child but are no longer able to do so.  Someone very close to the child wants to step in and provide consistency and stability for the child but does not want to become a licensed foster worker, prove themselves fit for “kinship placement,” or deal with the juvenile court system.  

In these situations, a nonparent may petition the court for custody if they can prove: 1) they have a “substantial relationship” with the child and 2) denying them custody/visitation would result in harm to the child.  When a nonparent is able to successfully establish this criteria, social services may not have to get involved at all.  This means social workers can spend their time and efforts with other children who maybe aren’t lucky enough to have someone willing to step in. It also means that children are more likely to have consistency and stability, which plays a big role in reducing trauma.

I cannot count the amount of times aunts, uncles, grandparents, even neighbors have called my office stating they want to step in, but for whatever reason cannot undertake the steps of becoming a licensed foster parent or aren’t interested in having county social workers in their lives on a regular basis.  Now, they don’t have to.

Easing the Burden on Social Services 

Courts are taking note of a nonparent’s willingness to provide stability for children and ease the strain on social services. I’ve recently had a judge thank my clients for stepping in and offering to take custody under this statute.  That same judge commended my clients for helping to ease the burden on social services and commented on how lucky the child was to have my clients as caregivers.

If you believe the Nonparent Custody Act applies to your situation, I cannot stress enough how important it is to get a consultation as early as possible.  The Nonparent Custody Statute has detailed requirements for someone trying to demonstrate that they are a “consistent caretaker” or have a “substantial relationship” with a child.  Even the best interest factors are more complicated as the Nonparent Custody Statute requires the Court to review an even longer list of factors than what is typically analyzed in custody cases.

The Court must make specific findings based on this narrow area of the law and failure to meet all requirements will result in your petition being denied.  Schedule a consult with an attorney as early as possible so the matter can be handled properly from the beginning.

Furthermore, the underlying issue which necessitated your involvement in the first place will likely not solve itself.  Relationships will only become more strained over time which increases the cost of litigation. In fact, waiting to consult with an attorney usually means the underlying situation actually becomes more complicated, which will actually increase your legal bills in the end.

The biggest mistake nonparents make is waiting to begin a custody action in an effort to avoid the inevitable stress that comes with a custody action. Admittedly, a custody action is rarely a fun process and will likely cause some stress to your relationship.  However, if you take care of the issues will tensions are their lowest, you increase your chances that all involved will be able to successfully move forward.

Key Takeaways

The North Dakota Legislature has taken steps to allow nonparents to do the right thing and minimize governmental intrusion.  This is good for all involved, especially children. If you only take away a few points from this article, let it be these:

1. Do pay attention to the children in your “village.”

2. Do step in when necessary (assuming you are willing/able) rather than waiting for social services to pick up on a problem they might not see.

3. Do NOT assume that an informal agreement is sufficient.

4. Do NOT wait to consult with a lawyer!

If you have any questions regarding non parent custody or any other family law question, please don’t hesitate to call us, we are here to help. Please reach out to our attorneys at Nilson Brand Law at (701) 786-6040 and we can discuss your situation. Or feel free to email [email protected].