When you first got divorced, the court may have named either you or your ex the primary residential parent. The parent with primary residential responsibility typically has more than 50 percent of the residential responsibility.
But even the best planners will find that things in life can happen unexpectedly. Whether it is the loss of a loved one or a new job opportunity, there could be a lot of reasons why you and your ex need to make changes to your original residential responsibility (formerly referred to as custody) order.
Legal requirements for modification
In North Dakota, either parent can request to modify primary residential responsibility, as long as it has been at least two years after the final order was implemented. However, you may request the modification sooner if:
- Both parents agree to the modification.
- The child’s physical or emotional health is currently at risk.
- The original parenting plan allows for a shorter timeframe for modification.
- There is willful and persistent interference with parenting time.
- Primary residential responsibility has switched from one parent to the other for more than six months.
Keep in mind that even if the two-year requirement is met, courts will only consider your modification if you establish a material change in circumstances and prove that the change is needed for the best interests of the child.
How do I file for a modification?
In order to file for a modification of primary residential responsibility you must file motion documents where you establish a written prima facie case for modification. The court will review the documents, and if it finds that a prima facie case has been established, an evidentiary hearing will be scheduled. Then, you and your ex, along with your attorneys, will meet and put together a joint information statement within 30 days of the entry of the court order for the hearing. You will have seven days after the meeting to file the statement with the court.
If you need to make changes to your residential responsibility agreement, it can be helpful to speak to an experienced family law attorney. Your attorney can help establish a prima facie case for modification to ensure that your motion does not get dismissed by the court.