Whenever a custody order is entered, the court must award the noncustodial parent such parenting time “as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child” (N.D.C.C. 14-05-22(2)). If the court awards anything less than that, the parenting time is “restricted.” Parenting time restrictions are only allowed in cases in which certain strict criteria are met.
In order to restrict a parent’s parenting time, the court must hold a hearing, and after the evidence is presented and considered, make a determination that the parenting time is “likely to endanger the child’s physical or emotional health” (N.D.C.C. 14-05-22(2)).
Burden Of Proof
The “moving party” (meaning the parent who is requesting the court impose the restriction on the other parent) has the burden to prove to the court that the restriction is necessary. The parent must do so by a “preponderance of the evidence,” which means the greater weight of evidence, or, crudely, 51 percent of the evidence.
As stated above, the moving party needs to prove that physical or emotional harm to the child is likely. Importantly, this must be shown by a “detailed demonstration.” The North Dakota Supreme Court has said that this detailed demonstration is a sort of “nexus or link” which shows how the conduct of the parent has resulted or will result in harm to the child. In other words, the moving party cannot simply show that the parental conduct and harm to the child are co-occurring. The parent must establish causation; that the conduct is the source of the harm to the child. The North Dakota Supreme Court has stated that it will not “surmise or conjecture” the link; it must be a detailed demonstration.
Further, this detailed demonstration must be made with regard to each child for whom the restriction is sought. A person cannot prove a detailed demonstration of harm to one child and then obtain a restriction for all of the child’s siblings.
Types Of Restrictions
The most common type of restriction is supervised parenting time. This means that the parent can only have visitation with the child in a setting in which he or she is being watched by a trusted third party to ensure that harmful conduct will not occur or will be appropriately reported. Sometimes a friend or family member will be allowed to supervise. If this isn’t an option, the parties may use a supervised facility, which has a staff trained to observe and report on the visitation, manage a calendar for the visits, etc. These facilities charge a fee for their services.
Other restrictions include reduced or suspended parenting time, and reduced or suspended communication between the child and parent. These restrictions should only remain in place for so long as the unrestricted parenting time represents a risk of harm to the child. Typically, courts will use a “graduated” plan, in which the restrictions are slowly lifted over time so that the transition is easier on the child(ren) and the risk of harm is reduced as much as possible. For example, if the restriction were suspending parenting time, then before the parent is allowed every other weekend, he/she will first be allowed to have one or two hours every week of supervised time, then several hours of unsupervised time, then a gradually increasing amount of unsupervised time until “graduating” to full weekends.
Whether a parenting time restriction is appropriate or not will depend on the facts of each case. To give an idea of what the North Dakota Supreme Court has found to be sufficient or insufficient for restriction:
- Jensen v. Deaver. Restriction was appropriate when a father allowed someone to sexually molest and take photographs of his child’s private parts and didn’t do anything about it when it was shown that his refusal to take action was harmful to the child.
- Litoff v. Pinter. Restriction was appropriate when a father masturbated in the presence of his teenage daughter on multiple occasions, make sexual comments to the daughter, and pressured the daughter to recant the allegations by threatening to disinherit her and not pay for her college, and the child’s psychologist testified in detail about the emotional harm suffered by the child due to father’s conduct.
- Hendrickson v. Hendrickson. Suspended parenting time was not proper when the mother repeatedly frustrated visitation orders and attempted to alienate the children from their father, removed the children from the home at the father’s scheduled visitation times, and refused to allow the father to take the children for visitation. The guardian ad litem reported that the mother’s alienating behavior was “indicative of an unhealthy parental figure.” Yet, the Court reversed the district court’s ruling that parenting time should be suspended,
- Keita v. Keita. Restriction was not proper when the father spent minimal time with the child during marriage and almost no time with the child for more than a year prior to the trial. Father had angry behaviors, including kicking in the mother’s apartment door, physically restraining the mother from leaving the house, and harassing the mother, resulting in a DCRO, which the father later violated. Father was a risk of flight due to noncitizenship and bigamous relationships in another country. However, the physical or emotional harm likely to result to the children was not sufficiently detailed in the court’s findings.
- Sims v. Sims. Supervised parenting time restriction was not appropriate even though the children’s therapists testified that the father should have no parenting time, based on what they’d learned from the children (which was determined not to be credible testimony). The mother didn’t fully support the children’s relationship with the father. The children testified negatively about the father, and the district court found that the children were profoundly negatively impacted by parental disputes. However, the mother didn’t show that suspension of parenting time was appropriate, or that the father endangered the kids’ emotional health.
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