UNDERSTANDING CUSTODY and CHILD SUPPORT between

North Dakota and Minnesota

Which parent will the child live with after divorce?

The overarching consideration is what is in the best interests of the child. Both North Dakota and Minnesota have enumerated lists of these “best interests factors” which include (among other things) the mental and physical health of the parties, the willingness and ability of each parent to care for the child’s needs, and the potential effect on the well-being of the child due to any change in the home, school and community.

In North Dakota, what people commonly think of as “custody” is termed "residential responsibility," defined as a parent's responsibility to provide a home for the child. Minnesota uses the term “physical custody” defined as the routine daily care and the residence of the child. Allocating residential responsibility/physical custody can take many forms. For example, in North Dakota, "primary residential responsibility" means a parent has more than fifty percent of the residential responsibility; residential responsibility can also be equal. Physical custody is usually referred to as joint or sole. Joint means the routine daily care and control and the residence of the child is structured between both parents, but it is not necessarily an equal split of time; sole physical custody usually refers to the child residing with one parent the majority of time.

Who gets to make decisions for a child after divorce?

Whether agreed to by the parties or ordered by the court, a determination as to how decisions for the child are made, post-divorce, is an important determination.

In North Dakota, this is referred to as "decision-making responsibility,” defined as the responsibility to make decisions concerning the child relative to day-to-day decisions as well as major decisions such as education, healthcare and spiritual development. The term may refer to decisions on all issues or on specified issues. Minnesota uses the term “legal custody,” defined as the right to determine the child's upbringing, including education, health care and religious training.

Like residential responsibility/physical custody, decision-making authority/legal custody can be “joint” or “sole.” Joint means both parents have equal rights and responsibilities; sole means only one parent retains those rights.

Both North Dakota and Minnesota consider income, parenting time and number of children when determining the amount of child support awarded. However, there are several distinctions between the two states in calculating child support.

When determining child support in North Dakota, unless the parties have equal residential responsibility (50-50 split), generally only the obligor’s income and payment of health insurance costs are considered in determining child support. In Minnesota, the key components to determine child support include income, the amount of medical and dental insurance costs for the children, cost of child care, and the amount of parenting time. Unlike North Dakota, regardless of whether one party has the majority of parenting time, both parties’ income, contributions to health insurance, dental insurance, and child care costs are included to determine child support in Minnesota.

MORGAN L. CROAKER is an associate attorney with the Serkland Law Firm in Fargo. She practices primarily in the areas of divorce and family law. For more information, call 701-232-8957, email mcroaker@serklandlaw.com or visit serklandlaw.com.

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