What’s New? Changes in the Law: 2009

Four Major Changes Terminology and Definitions Parenting Plans Best Interest Factors Parenting Coordinators

Terminology and Definitions

Parental rights and responsibilities Umbrella term that covers all rights and responsibilities a parent has under Ch relating to custody. Means all rights and responsibilities a parent has concerning the parent's child.

Old Term: Physical Custody New Term: Primary Residential Responsibility Defined as: A parent with more than 50% of the residential responsibility

Old Term: Non-Custodial Parent New Term: A parent with less than 50% of the residential responsibility

Old Term: Physical Custody New Term: Primary Residential Responsibility Defined as: A Parent with more than 50% of the residential responsibility

New Term: Residential Responsibility Defined as: A Parent’s responsibility to provide a home for the child

Old Term: Legal Custody New Term: Decision-making Responsibility Defined as: The responsibility to make decisions concerning the child. The term may refer to decisions on all issues or on specified issues. Does not give power over support issues.

Old Term: Custody Agreement or Proposal New Term: Parenting Plan Defined as: A written plan describing each parent's rights and responsibilities.

Old Term: Custody or Visitation New Term: Parenting Time Defined as: The time when the child is to be in the care of a parent. Example: Tuesday evenings are Mom’s parenting time.

Old Term: Custody or Visitation Schedule New Term: Parenting Schedule Defined as: The schedule of when the child is in the care of each parent. Example: Dad – Mon. after school until 9:00 pm … Mom – pickup at 9:00 until school on Tuesday, etc.

Decision-making responsibility Generally, the court must accept the parent’s decision-making agreement unless the court makes written findings that the agreement is not in the best interest of the children. If the parents do not agree, the court allocates the decision-making authority based on the child’s best interest. If the decision-making is shared in some respect, the allocation must address a method of dispute resolution if the parent’s do not agree. For example, the allocation may say if the parents do not agree, dad will decide. Or, it may say, if they do not agree, they will work with a third party to resolve the dispute.

PARENTING PLANS

Parenting Plan A written plan describing each parent’s rights and responsibilities

Parenting Plans must be filed in ALL cases by parents. If Parents cannot agree on a Parenting Plan, the Court will issue a Plan.

What must be included in a Parenting Plan? Residential responsibility, parenting time and schedule including :  holidays,  days off school,  vacations,  summers,  birthdays,  weekends,  weekdays.

What must be included in a Parenting Plan? Transportation and Exchange of Child

What must be included in a Parenting Plan? Decision making responsibility for routine and major decisions

What must be included in a Parenting Plan? Legal residence of child for school

What must be included in a Parenting Plan? Information Sharing and access

What must be included in a Parenting Plan? Procedure for review and adjustment of the Parenting Plan

Method of Resolving Disputes What must be included in a Parenting Plan?

BEST INTEREST FACTORS

Best Interest Factors Statute: For the purpose of custody parental rights and responsibilities, 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: Factor “a” The love, affection and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection and guidance.

Factor “b” The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

Factor “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 child’s developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

Factor “d” The sufficiency and stability of each parent’s home environment, the impact of extended family, the length of time the child has lived in a stable satisfactory environment each parent’s home and the desirability of maintaining continuity in the child’s home and community.

Factor “e” The permanence, as a family unit, of the existing or proposed custodial home willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

Factor “f” and “g” f.The moral fitness of the parents, as that fitness impacts the child. g. The mental and physical health of the parents, as that health impacts the child.

Factor “h” The home, school and community record of the child and the potential effect of any change.

Factor “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. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child.

Factor i. (continued) The court also shall give due consideration to other factors that may have affected the child’s preference, including whether the child’s preference was based on undesirable or improper influences.

PARENTING COORDINATORS

Parenting Coordinator Neutral individual authorized to use any dispute resolution process to resolve parenting time disputes. Purpose is to resolve disputes by interpreting, clarifying and addressing circumstances not specifically addressed by an existing court order

Parenting Coordinator May assess whether there has been a violation of an existing court order and require further court proceedings. May resolve one time parenting time disputes or provide ongoing services

Parenting Coordinator Must attempt to resolve dispute by facilitating negotiations between the parties and if it becomes apparent that the dispute cannot be resolved by agreement, then the Parenting Coordinator shall make a decision resolving the dispute.

Agreement or Decision Binding Within 5 days of appointment or notice of dispute, a Parenting Coordinator must meet with parties and make a diligent effort to resolve the dispute. If parties can’t agree, then the Parenting Coordinator must make a decision ASAP but no later than 5 days after receiving all information necessary to make a decision and after the final meeting with the parties.

Agreement or Decision Binding A Parenting Coordinator must put agreement in writing and provide copies to the parents. An agreement of the parties or decision of the Parenting Coordinator is binding on the parties until further order of the court.

Fees Paid by the parties. If the parties cannot afford a Parenting Coordinator, one will NOT be appointed. Court must apportion the fees in a just and equitable manner. After fees are incurred, parties may bring a motion to re-apportion fees. Court may consider information from the Parenting Coordinator to determine bad faith.

Confidentiality Process is confidential. Parenting Coordinator cannot be called as a witness Parenting Coordinator’s notes, records and recollections are confidential and may not be disclosed. Except: –with respect to matters which are mandated to be disclosed, such as abuse of a child –under the fee paying structure, a parenting coordinator could advise the court about bad faith of one of the parents.

The parenting coordinator program law has a sunset of June 30, Legislative Intent is for program to be self funding as of

Immunity Parenting Coordinators are immune from civil liability

CHANGE OF RESIDENCE This statute change simply codifies Maynard v. McNett, 2006 ND 36, 710 N.W.2d 369. Parents who have equal parenting time with their children must also have the primary residential parenting time modified in order to move.

SUMMARY FOUR Major Changes -- Terminology and Definitions Parenting Plans Best Interest Factors Parenting Coordinators

Coordinating rule changes Order of Adoption Supreme Court No Order of Adoption dated June 3, 2009Order of Adoption Amendment to N.D.R.Civ.P. 4-Persons Subject to Jurisdiction Amendment to N.D.R.Ct. 8.2-Interim Orders in Domestic Relations Cases Amendment to N.D.R.Ct. 8.3-Case Management (Divorce Cases) Amendment to N.D.R.Ct. 8.4-Summons in Actions for Divorce, Separation or Custody Amendment to N.D.R.Ct. 8.5-Domestic Relations Summary Proceeding Amendment to N.D.R.Ct. 8.6-Custody Investigators Amendment to N.D.R.Ct. 8.7-Guardian ad Litem Amendment to N.D.Adm.Prac. 4-Licensing and Practice of Foreign Legal Consultants Amendment to N.D.Sup.Ct.Admin.R. 8-Temporary Judges, Appointment Amendment to N.D.Sup.Ct.Admin.R. 27-Court of Appeals Effective August 1, 2009 Comments due by July 31, 2009

Additional Resources PARENTING PLANS Most states use parenting plans so you can go on line to see what resources are available in other states. This is just a sampling. Soon we too will have online resources. Arizona: Oregon: Massachusetts: Minnesota: Montana: New Hampshire: NEW HAMPSHIRE REPORT. This state undertook a 3 year study of the family law system. The Task Force found their conclusions to be helpful as we drafted the new law. The report can be found at PARENTING COORDINATORS Mediators and Parenting Coordinators: Comparing and Contrasting – 20 Questions/40 Answers, Jessani, James, American Journal of Family Law,