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Prepared by the North Dakota Legislative Council staff for the Child Support Committee July 1997

CHILD SUPPORT GUIDELINES AND CHILD CUSTODY AND VISITATION - BACKGROUND MEMORANDUM

INTRODUCTION

House Concurrent Resolution No. 3031 directs the Legislative Council to study the issues of fairness and equity as they relate to child support guidelines and the issuance and enforcement of child custody and visitation orders (Appendix "A" attached). This resolution focuses on three issues--fairness and equity of child support guidelines, issuance and enforcement of child custody orders, and issuance and enforcement of visitation orders. The issue of visitation rights of the noncustodial parent is a part of the broader issue of child custody; therefore, visitation and custody orders will be addressed together in this memorandum.

1997 Legislation

Legislation Enacted

House Concurrent Resolution No. 3034 directed a study of the impact of divorce on children and issues of equity and fairness as they relate to custody determinations, visitation orders, and child support obligations. The Legislative Council did not prioritize this resolution for study.

Senate Concurrent Resolution No. 4048 directed a study of the interrelationship of the postjudgment issues of child support and visitation, including the accountability of both parents to honor divorce orders and the development of a parenting education program that addresses the impact of divorce on children. The Legislative Council did not prioritize this resolution for study.

Section 14 of House Bill No. 1041 requires a study of the provision of child support services and child care licensing in this state.

House Bill No. 1226 provides for the welfare reform legislation necessary to bring the state into compliance with federal welfare legislation and includes numerous child support enforcement provisions.

Senate Bill No. 2167 limits postjudgment custody modifications within two years after entry of a custody order unless modification is necessary to serve the best interest of the child and there is persistent and willful denial or interference with visitation, the child is in danger, or there has been a de facto change in custody.

Senate Bill No. 2280 requires the Department of Human Services to request a child support enforcement agency to enter a child support withholding order within 20 days of the date the income withholding is determined appropriate or the date of receipt of information necessary to carry out the withholding.

Senate Bill No. 2357 requires a court to award attorney's fees and costs if the court finds that the custodial parent has willfully and persistently denied visitation rights to the noncustodial parent.

Defeated Legislation

House Bill No. 1244 would have required a court to order the obligor in a child support case to submit nonreimbursable medical expenses to the clerk of court as disbursements taxed in judgment. The bill failed to pass the House.

House Bill No. 1258 would have imposed a 90-day waiting period from the date of filing a divorce petition before the court may enter a final decree, during which time the parties would have been required to attend parent education courses. The bill failed to pass the House.

House Bill No. 1308 would have required the court to weigh heavily in favor of changing custody the court-ordered placement in foster care of any child who resides or has resided in the household of the custodial parent. The bill failed to pass the House.

House Bill No. 1317 would have changed the basis for calculation of gross income and expense deduction in determining child support by referencing the Internal Revenue Service Code and would have required the use of a five-year average of net income to determine the net income of a self-employed individual. The bill failed to pass the House.

Senate Bill No. 2390 would have required the inclusion of a spouse's income in child support calculations. The bill failed to pass the House.

Prior Studies

During the 1993-94 interim, the Judiciary Committee, as directed by Senate Concurrent Resolution No. 4057, studied the Uniform Interstate Family Support Act and the Act's relationship to existing North Dakota law and the desirability of adopting the Act. The committee recommended adoption of the Act.

The 1991-92 Administrative Rules Committee, pursuant to Section 24 of Senate Bill No. 2002, studied the impact of various child support guideline models on family units, on the quality of the relationships among the persons in the families, and on children who receive child support. The committee recommended guidelines that incorporate a modified income shares model.

Also during the 1991-92 interim, the Budget Committee on Human Services, pursuant to Senate Concurrent Resolution No. 4050, studied the distribution of child support enforcement incentive payments made by the federal government. The committee recommended a child support incentives account funded with money from the federal child support incentives, with distributions made to child support education programs.

The 1987-88 Budget Committee on Human Services received information on allocation of federal child support enforcement incentives.

CHILD SUPPORT GUIDELINES

Federal Statutory Provisions

One portion of the 1996 federal welfare reform legislation--42 U.S.C. 602(a)(2)--provides that a state's eligibility to receive a block grant for temporary assistance for needy families (TANF) is in part dependent on "certification by the chief executive officer of the State that, during the fiscal year, the State will operate a child support enforcement program under the state plan approved under" the Child Support Enforcement Act.

The Child Support Enforcement Act requires states to enact certain remedies and procedures to improve child support collections. The Child Support Enforcement Act is found in Sections 651 through 669 of Title 42 of the United States Code.

Federal law regarding state guidelines for child support awards provides in 42 U.S.C. 667(a) and (b):

1. Establishment of guidelines; method
   Each State, as a condition for having its State plan approved under this part, must establish guidelines for child support award amounts within the State. The guidelines may be established by law or by judicial or administrative action, and shall be reviewed at least once every 4 years to ensure that their application results in the determination of appropriate child support award amounts.
2. Availability of guidelines; rebuttable presumption
   1. The guidelines established pursuant to subsection (a) of this section shall be made available to all judges or other officials who have the power to determine child support awards within such State.
   2. There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.
3. The Secretary shall furnish technical assistance to the States for establishing the guidelines, and each State shall furnish the Secretary with copies of its guidelines. (emphasis added)

The federal Personal Responsibility and Work Opportunities Reconciliation Act of 1996 amended 42 U.S.C. 666 to address the federal requirements for state statutorily prescribed procedures to improve the effectiveness of child support enforcement (Appendix "B" attached). The prescribed state statutory procedures addressed in the Act include income withholding, expedited procedures, state income tax returns, liens, determination of paternity, guarantees, arrearages, support order review and adjustment, parent location networks, Social Security numbers, interstate child support orders, license suspension, financial institution data matching, children with minor parents, and health care coverage. The 1997 Legislative Assembly enacted House Bill No. 1226 to implement the federal requirements. The Legislative Council's interim Welfare Reform Committee is studying welfare reform issues during this interim.

North Dakota Statutory Provisions

North Dakota's child support guidelines law is found in North Dakota Century Code (NDCC) Section 14-09-09.7. This section was enacted in 1983 when the Legislative Assembly patterned North Dakota's child support program after Utah's. A portion of North Dakota Century Code Section 14-09-09.7, as created in 1983, required the Department of Human Services to assemble information and create a scale of suggested minimum contributions to be used in determining the amount a parent might be expected to contribute in child support. The scale was not obligatory and the department testified that it anticipated the vast majority of administrative child support orders would be entered as a consequence of the agreement of the parties involved. This law was amended in 1987 but in 1990 the resulting guidelines were ruled invalid because the guidelines had not been adopted in accordance with NDCC Chapter 28-32. Huber v. Jahner, 460 N.W.2d 717 (1990).

The 1989 Legislative Assembly enacted Senate Bill No. 2245 to implement the 1988 amendments to federal law. The bill was drafted by the Department of Human Services with substantial advice from the Juvenile Procedures Committee of the Judicial Conference.

North Dakota Century Code Section 14-09-09.7, which was amended in 1989, 1993, and 1997, provides:

1. Child support guidelines.
2. The department of human services shall establish child support guidelines to assist courts in determining the amount that a parent should be expected to contribute toward the support of the child under this section. The guidelines must:
   1. Include consideration of gross income.
   2. Authorize an expense deduction for determining net income.
   3. Designate other available resources to be considered.
   4. Specify the circumstances which should be considered in reducing support contributions on the basis of hardship.
3. The department shall accept and compile pertinent and reliable information from any available source in order to establish the child support guidelines. Copies of the guidelines must be made available to courts, state's attorneys, and upon request, to any other state or county officer or agency engaged in the administration or enforcement of this chapter.
4. There is a rebuttable presumption that the amount of child support that would result from the application of the child support guidelines is the correct amount of child support. The presumption may be rebutted if a preponderance of the evidence in a contested matter establishes, applying criteria established by the public authority which take into consideration the best interests of the child, that the child support amount established under the guidelines is not the correct amount of child support. A written finding or a specific finding on the record must be made if the court determines that the presumption has been rebutted. The finding must:
   1. State the child support amount determined through application of the guidelines;
   2. Identify the criteria that rebut the presumption of correctness of that amount; and
   3. State the child support amount determined after application of the criteria that rebut the presumption.
5. The department shall institute a new rulemaking proceedings under section 28-32-02 relating to the child support guidelines to ensure that the application of the guidelines results in the determination of appropriate child support award amounts. The initial rulemaking proceeding must be commenced with a notice of proposed adoption, amendment, or repeal by August 1, 1998, and subsequent rulemaking proceedings must be so commenced at least once every four years thereafter. Before commencing any rulemaking proceeding under this section, the department shall convene a drafting advisory committee that includes two members of the legislative assembly appointed by the chairman of the legislative council.

North Dakota Century Code Section 14-09-08.4, as created in 1989 and amended in 1991, 1993, and 1997, provides:

1. Periodic review of child support orders.
2. Each child support order must be reviewed by the child support agency no less frequently than thirty-six months after the establishment of the order or the most recent amendment or review of the order by the court or child support agency unless:
   1. In the case of an order with respect to which there is in effect an assignment under chapter 50-09 or 50-24.1, the child support agency has determined that a review is not in the best interests of the child and neither the obligor nor the obligee has requested review; or
   2. In the case of any other order neither the obligor nor the obligee has requested review.
3. Each child support order, in which there is in effect an assignment under chapter 50-09 or with respect to which either the obligor or the obligee has requested review, must be reviewed by the child support agency if:
   1. More than twelve months have passed since the establishment of the order or the most recent amendment or review of that order by the court or child support agency, whichever is later; and
   2. The order provides for no child support and was based on a finding that the obligor has no ability to pay child support.
4. If, upon review, the child support agency determines that the order provides for child support payments in an amount that is inconsistent with the amount that would be required by the child support guidelines established under subsection 1 of section 14-09-09.7, the child support agency may seek an amendment of the order. If the order provides for child support payments in an amount less than eighty-five percent of the amount that would be required by those guidelines, the child support agency shall seek an amendment of the order.
5. If a child support order sought to be amended was entered at least one year before the filing of a motion or petition for amendment, the court shall order the amendment of the child support order to conform the amount of child support payment to that required under the child support guidelines, whether or not the motion or petition for amendment arises out of a periodic review of a child support order, and whether or not a material change of circumstances has taken place, unless the presumption that the correct amount of child support would result from the application of the child support guidelines is rebutted. If a motion or petition for amendment is filed within one year of the entry of the order sought to be amended, the party seeking amendment must also show a material change of circumstances.
6. A determination that a child who is the subject of a child support order is eligible for benefits furnished under subsection 18 or 20 of section 50-06-05.1, chapter 50-09, or chapter 50-24.1, or any substantially similar program operated by any state or tribal government, constitutes a material change of circumstances. The availability of health insurance at reasonable cost to a child who is the subject of a child support order constitutes a material change of circumstances. The need to provide for a child's health care needs, through health insurance or other means, constitutes a material change of circumstances.

North Dakota Administrative Rules

Introduction

North Dakota Century Code Section 14-09-09.7 requires the Department of Human Services to adopt child support guidelines and requires that the child support guidelines consider gross income, recognize expenses to determine net income, designate financial resources to consider, and specify the circumstances to consider in reducing support contributions due to hardship. State law does not dictate the model to be used by the Department of Human Services in establishing the guidelines and does not specify whether the income of both parents is to be considered in support decisions. The department's administrative rules addressing child support guidelines are found in North Dakota Administrative Code Chapter 75-02-04.1 (Appendix "C" attached).

History

The Department of Human Services is required to establish a scale of suggested minimum contributions for child support. The scale of minimum contributions established by the department in 1983 and amended in 1987 was not established through the rulemaking process. The 1989 Legislative Assembly amended NDCC Section 14-09-09.7 to require the adoption of guidelines by the department and to provide a rebuttable presumption that the guidelines provide for the correct amount of child support. In September 1990 the North Dakota Court of Appeals declared the guidelines invalid. The court held that because the guidelines were substantive rules, they should have been adopted in accordance with Chapter 28-32. Huber v. Jahner, 460 N.W.2d 717 (N.D. 1990).

In 1989 the department determined that the guidelines should be adopted in the form of administrative rules to assure that the guidelines have the force and effect of law as provided for by NDCC Section 28-32-03. In addition, the department determined that the publication of the guidelines in the Administrative Code would make the guidelines readily available to courts and state's attorneys, as required by Section 14-09-09.7(2).

On January 5, 1990, the department initially proposed to adopt child support guidelines as administrative rules. As required by law, the department requested public comments and announced a public hearing.

On February 9, 1990, the department conducted a public hearing concerning the proposed rules.

The oral comments received at the hearing and the written comments received before and during the hearing generally opposed the proposed rules. The interim Administrative Rules Committee members also received public comment opposing the proposed rules. Upon review of those comments, the department withdrew the proposed rules.

The department began drafting guidelines based on the "income shares" model. During the development of that model, the department solicited comments from the Juvenile Procedures Committee, a committee established by the North Dakota Supreme Court. Committee members recommended that an income shares model not be adopted. The department then developed guidelines based on the "obligor" model. The obligor model bore some resemblance to the previously existing guidelines but incorporated changes to reflect the suggestions made with respect to the withdrawn rules.

On September 26, 1990, the department proposed rules in the alternative. The two alternatives were the income shares model, developed early in 1990, and the obligor model, developed after receiving comments from the Juvenile Procedures Committee. The department's proposals were widely disseminated and debated. The department received a combination of written and oral comments from 138 commentors. The department specifically asked commentors to indicate whether they preferred the income shares model or the obligor model. The commentors who expressed a preference were almost equally divided, with most of the attorneys and judges who offered comment preferring the obligor model. The reasons given were varied, but most who preferred the obligor model were concerned about the additional judicial and legal time that would be required to develop and consider financial information about two persons, rather than one person.

The department opted to adopt the proposed rules based on the obligor model. The rules became effective February 1, 1991. The department's stated reasons for adopting the obligor model over the income shares model included the department's opinion that the income shares model was more complex and thus would increase litigation costs, lead to more requests for review, be more difficult to use in emergency cases, and although the income shares model appeared more fair, in most cases there would be little or no difference in award amounts.

Legislation introduced in 1991, 1993, and 1995 would have provided for adoption of an income shares model for the child support guidelines, but in each case the legislation failed to pass.

The department adopted many minor and technical changes to the child support guidelines effective January 1, 1995. The changes provided for recognition of all of the obligor's child support duties in determining the obligation in each case, imputing income based on earning capacity, determining the cost of supporting a child living with the obligor who is not also a child of the obligee, and for determining support amounts in multiple-family cases. The rules also made changes in the criteria for rebuttal of the amount determined by application of the child support guidelines.

CHILD SUPPORT GUIDELINE MODELS

Much of the debate over child support guidelines in recent years has centered on the appropriate model to be used to establish support orders. The income shares model, the obligor model, and the Melson Delaware model are the three basic approaches that have been used by states to determine child support orders.

Income Shares Model

The income shares model is based on two assumptions:

1. The support available to the child should be based on the combined income of the two parents.
2. The child should receive the same proportion of parental income that the child would have received if the parents lived together.

These assumptions are predicated on recent studies that have found that expenditures on children amount to a consistent proportion of household consumption and that this proportion varies systematically with the level of household income and the number and age of children.

Application of the model involves:

1. Determining combined adjusted income of parents, with some allowable deductions, and the percentage of income contributed by each parent;
2. Determining the combined obligation of parents toward the support of their children from the available economic evidence, less medical and child care expenses; and
3. Apportioning the obligation to parents in the percentages determined for their incomes.

Additional adjustments are made in some states for split, shared, or joint custody arrangements. The custodial parent is presumed to spend the designated percentage on the child and the noncustodial parent must pay the percentage of the obligation determined for that parent to the custodial parent. Work-related child care expenses and extraordinary medical expenses are allotted between the parents in proportion to their net incomes and ordered as additional child support.

Obligor Income Model

The obligor income model establishes a percentage of the obligor's income, usually net after required tax deductions, to be paid based on the available economic evidence on the cost of rearing children. In some states, a flat percentage is used. In others, the percentage varies by number of children or economic factors.

Melson Delaware Model

The Melson Delaware formula combines a cost-sharing and income-sharing approach. The model, developed by Judge Elwood Melson, has been used in Delaware since 1979. It defines the basic amount required to support a child and apportions that amount between parents based on the relative disposable incomes. The formula then adds a standard of living adjustment that each parent may pay. The standard of living adjustment is 15 percent of net income for the first child and 10 percent for each additional child. The standard of living adjustment is not applied to the obligor until the obligor's income is sufficient to support the obligor minimally. Once this minimal income level is reached, the next increments of income are used for child support until the children reach the same poverty level of support. Beyond this level, the income-sharing formula is used to determine the portion of the obligor's remaining income that must be contributed for child support. The formula takes into account child care and medical expenses. The formula as developed was the most complicated but in 1990 Delaware made major changes to simplify the formula.

The following information regarding which of the three model types states use to implement child support guidelines is current through May 1, 1996.

STATE-BY-STATE MODEL OF IMPLEMENTATION OF GUIDELINES

State	Income Shares	Percentage of Income	Melson Delaware Formula
Alabama	X
Alaska		X(F)*
Arizona	X
Arkansas		X(V)**
California	X	X(V)**
Colorado	X
Connecticut	X
Delaware			X
District of Columbia		X(V)**
Florida	X
Georgia	X	X(F)*
Hawaii
Idaho	X
Illinois		X(F)*
Indiana	X
Iowa	X
Kansas	X
Kentucky	X
Louisiana	X
Maine	X
Maryland	X
Massachusetts		X(V)**
Michigan	X
Minnesota		X(V)**
Mississippi		X(F)*
Missouri	X
Montana			X
Nebraska	X
Nevada		X(F)*
New Hampshire	X
New Jersey	X
New Mexico	X
New York	X
North Carolina	X
North Dakota		X(V)*
Ohio	X
Oklahoma	X
Oregon	X
Pennsylvania	X
Rhode Island	X
South Carolina	X
South Dakota	X
Tennessee		X(F)*
Texas		X(F)*
Utah	X
Vermont	X
Virginia	X
Washington	X
West Virginia			X
Wisconsin		X(F)*
Wyoming		X(V)**
*(F) = flat percentage model
**(V) = varying percentage model

CHILD CUSTODY ORDERS AND VISITATION ORDERS

North Dakota Statutory Provisions Initial Determination

Child custody determinations are based on North Dakota statutes. North Dakota Century Code Section 14-09-04 provides the mother and father of a legitimate unmarried minor child are entitled equally to custody of the child. Under Section 14-09-05, when maternity and paternity of an illegitimate child are positively established, the custody rights are equal as between the mother and father and must serve the best interests of the child.

Child custody often becomes an issue when a mother and father live separate and apart from each other. Section 14-09-06 provides:

The husband and father and wife and mother have equal rights with regard to the care, custody, education, and control of the children of the marriage, while such husband and wife live separate and apart from each other, and when they so live in a state of separation without being divorced, the district court or judge thereof, upon application of either, may grant a writ of habeas corpus to inquire into the custody of any minor unmarried child of the marriage, and may award the custody of such child to either for such time and under such regulations as the case may require. The decision of the court or judge must be guided by the rules provided by law for awarding the custody of a minor or the appointment of a general guardian.

Child custody determinations must promote the best interests and welfare of the child (North Dakota Century Code Section 14-09-06.1). Regardless of whether the parents are married, Section 14-09-06.2(1) lists the factors considered in determining the best interests and welfare of a child, providing:

For the purpose of custody, 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:

1. The love, affection, and other emotional ties existing between the parents and child.
2. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
3. 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.
4. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
5. The permanence, as a family unit, of the existing or proposed custodial home.
6. The moral fitness of the parents.
7. The mental and physical health of the parents.
8. The home, school, and community record of the child.
9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
10. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent's participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child's nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, "domestic violence" means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.
11. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
12. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
13. Any other factors considered by the court to be relevant to a particular child custody dispute.

Because of their interrelated nature, visitation is frequently considered at the same time custody is determined. North Dakota case law indicates a trial court may consider the parents' attitudes regarding visitation when the court determines child custody. For example, where the trial court found a mother had a hostile attitude toward visitations between a child and father but, in contrast, the father had expressed a willingness to foster and encourage regular visitations between the mother and child, the court gave this factor significant weight in deciding to place the child in the father's custody; it was appropriate for the court to do so, because visitation between a child and a noncustodial parent is presumed to be in the best interests of the child and hostility of a custodial parent toward such visitations could be detrimental to the child's best interests. Schmidkunz v. Schmidkunz, 529 N.W.2d 857 (N.D. 1995); see also McAdams v. McAdams, 530 N.W.2d 647 (N.D. 1995) (split custody is proper when one parent prevents visitation by the noncustodial parent because the split custody award furthers the child's best interests in maintaining a stable relationship with the noncustodial parent).

Although the North Dakota Supreme Court has determined that visitation with the noncustodial parent is presumed to be in the best interests of a child, the primary purpose of visitation is to promote the best interests of the child and not the wishes or desires of the parents. Reinecke v. Griffeth, 533 N.W.2d 695 (N.D. 1995). Denial of visitation rights should be the exception and not the rule; the exception should be only when it is in the best interests of the child. See C.B.D. v. W.E.B., 298 N.W.2d 493 (N.D. 1980) (trial court properly denied father of an illegitimate child visitation rights as being in the best interest of the child where father had no contact and had not supported the child over the past two and one-half years, had denied that he was the father of the child, and there was a pending marriage by the mother of the child and the possibility of adoption of the child by the mother's future husband). The court also has determined that a showing by a preponderance of the evidence authorizes the finding that "visitation is likely to endanger the child's physical or emotional health," which justifies curtailment of visitation. Healy v. Healy, 397 N.W.2d 71 (N.D. 1986).

North Dakota Century Code Section 14-05-22 addresses visitation issues in divorce proceedings, providing:

1. In an action for divorce, the court, before or after judgment, may give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may vacate or modify the same at any time. Any award or change of custody must be made in accordance with the provisions of chapter 14-09.
2. After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child's physical or emotional health.
3. If the court finds that a parent has perpetrated domestic violence and that parent does not have custody, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, the court shall allow only supervised child visitation with that parent unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child's physical or emotional health.
4. If any court finds that a parent has sexually abused the parent's child, the court shall prohibit all visitation and contact between the abusive parent and the child until the court finds that the abusive parent has successfully completed a treatment program designed for such sexual abusers, and that supervised visitation is in the child's best interest. Contact between the abusive parent and the child may be allowed only in a therapeutic setting, facilitated by a therapist as part of a sexual abuse treatment program, and only when the therapist for the abusive parent and the therapist for the abused child agree that it serves a therapeutic purpose and is in the best interests of the child.
5. In any custody or visitation proceeding in which a parent is found to have perpetrated domestic violence, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, all court costs, attorneys' fees, evaluation fees, and expert witness fees must be paid by the perpetrator of the domestic violence unless those costs would place an undue financial hardship on that parent.

Enforcement

Enforcement of a child custody order or visitation order is essentially the same as enforcement of any court order. The enforcement tool available to a court is contempt proceedings. Additionally, 1997 legislation created NDCC Section 14-09-24, which provides that in a child visitation proceeding, the court is required to award the noncustodial parent reasonable attorney's fees and costs if the court determines there has been willful and persistent denial of visitation rights by the custodial parent with respect to the minor child.

Modification

Unlike when the trial court makes an original award of custody between parents based on a determination, the single issue of what is in the child's best interests when the trial court considers a request to modify a custody award, it must determine two issues: (1) whether, on the basis of facts that have arisen since the earlier order or on the basis of facts that were unknown to the court at the time of the earlier order, there has been a material change in the circumstances of the child or the parties since the earlier custody award; and, if so, (2) whether the modification is necessary to serve the best interests of the child. The parent seeking to modify custody has the burden of showing both that a circumstance changed significantly and that this change so adversely affected the child that custody should be changed. Gould v. Miller, 488 N.W.2d 42 (N.D. 1992).

The North Dakota Supreme Court has determined frustration of visitation does not in and of itself constitute a sufficient change in circumstances to warrant a change in custody. Before visitation problems justify changing custody, there must be a finding that the visitation problems worked against the child's best interests. Blotske v. Leidholm, 487 N.W.2d 607 (N.D. 1992); see Miller v. Miller, 305 N.W.2d 666 (N.D. 1981) (custodial parent's frustration of noncustodial parent's visitation privileges in and of itself does not constitute a sufficient change of circumstances to warrant a change in custody). Additionally, as amended in 1997, NDCC Section 14-09-06.6 limits postjudgment custody modifications within two years after entry of a custody order unless modification is necessary to serve the best interests of the child and there is persistent and willful denial or interference with visitation, the child is in danger, or there has been a de facto change in custody.

North Dakota Century Code Section 14-09-07 limits when a custodial parent may change the residence of a child to another state. Modification proceedings frequently accompany legal proceedings initiated when a custodial parent seeks to change the residence of a child. Section 14-09-07 provides:

A parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree. A court order is not required if the noncustodial parent (1) has not exercised visitation rights for a period of one year or (2) has moved to another state and is more than fifty miles [80.47 kilometers] from the residence of the custodial parent.

Mediation

Although typically in child custody cases the determination of the best interests and welfare of a child is made by the court, NDCC Chapter 14-09.1 provides for voluntary mediation in custody determinations. Section 14-09.1-02 provides:

In any proceeding involving an order, modification of an order, or enforcement of an order for the custody, support, or visitation of a child in which the custody or visitation issue is contested, the court may order mediation at the parties' own expense. The court may not order mediation if the custody, support, or visitation issue involves or may involve physical or sexual abuse of any party or the child of any party to the proceeding.

Uniform and Model Acts

The Uniform Interstate Family Support Act, which was adopted in 1995, is codified as NDCC Chapter 14-12.2. The Uniform Interstate Family Support Act replaced the Revised Uniform Reciprocal Enforcement of Support Act, which was codified as Chapter 14-12.1. The Revised Uniform Reciprocal Enforcement of Support Act was adopted in 1969 and repealed in 1995. The Uniform Interstate Family Support Act was amended in 1997 by House Bill No. 1093.

The Uniform Child Custody Jurisdiction Act, which was adopted in 1969, is codified as Chapter 14-14.

APPROACH TO STUDY

Child Support Guidelines

A 1994 study for the United States Department of Health and Human Services Office of Child Support Enforcement indicates what issues are typically addressed when states review child support guidelines. Based on this federal study, the following issues may be helpful in organizing a study of child support guidelines:

1. Child-rearing cost.
2. Guideline model.
3. Who owes child support:
   1. Noncustodial parent.
   2. Custodial parent.
   3. A parent's new spouse or partner.
   4. Child's grandparents.
4. How long is child support owed.
5. Determining the income available for child support:
   1. Net vs. gross income.
   2. Definition of "income."
      1. Salary and wages (overtime).
      2. Commissions.
      3. Bonuses.
      4. Tips and perquisites.
      5. Rental income.
      6. Estate or trust income.
      7. Royalties.
      8. Interest, dividends, annuities.
      9. Social Security or supplemental security income.
      10. Veterans' benefits, unemployment compensation, workers' compensation.
      11. Retirement, pension.
      12. Proceeds from contractual agreements.
      13. Self-employment earnings.
      14. Alimony.
      15. Unearned income.
      16. In-kind compensation.
      17. Welfare (means tested).
      18. Military benefits.
      19. Imputed or attributed income.
          1. When should it be imputed.
          2. How much income should be attributed.
6. Adjustments to income:
   1. Self-support reserves.
   2. Child care expenses.
   3. Health insurance premiums.
   4. Multiple families.
7. Application of the guideline formula:
   1. Application of guideline to specific income levels.
   2. Nonincome obligors.
   3. Self-support reserves.
   4. Minimum support obligation.
   5. High-income obligors.
8. Child's need as a guideline calculation factor:
   1. Age as a determiner of need.
9. Custody and care issues:
   1. Traditional sole custody and the calculation of support.
   2. Shared/joint custody.
   3. Split custody.
   4. State custody.
10. Guideline handling of multiple family cases:
    1. Incorporating multiple families into guideline formula.
    2. Discretionary treatment of multiple-family cases.
11. Child care costs.
12. Medical insurance premiums.
13. Extraordinary medical expenses.
14. Postsecondary education.
15. Obligee accountability.
16. Award modifications.
17. Automatic award adjustments.
18. Retroactive child support.
19. Arrears.

Initial organization of the study approach should consider whether child support guidelines should continue to be developed by administrative rule, what model to use, how the amount of net income should be determined, and the amount of money needed to raise a child.

Child Custody and Visitation

The legislative history of House Concurrent Resolution No. 3031 indicates a strong impetus behind the study is frustration on the part of noncustodial parents regarding payment of child support accompanied with the inability to exercise visitation. Special interests include custodial parents, noncustodial parents, and the best interests of the children. Due to the very broad nature of child custody and visitation orders, in order to successfully complete this study, it may be necessary to immediately identify specific areas of interest and limit the study to these areas.

ATTACH:3

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