I am so sorry for what your family is going through. It is not only hard on you, but it is EXTREMELY hard on your child.
In North Dakota, there is no specific age at which a child may decide which parent to live with. A child's custody preference is given more respect as the child's age and maturity increases. If your eleven year old is mature and can articulate what is going on in the biological mom's home, the judge will give weight the child's information and preference as to who s/he wishes to live with.
As you'd expect, Courts give more weight to the preference of a child who is seventeen than one who is twelve. Courts seldom - but may - consider children age ten and under to have a sufficient maturity to express a custody preference. A child's preference will be discounted if it appears "purchased" by a parent's manipulations.
Unfortunately, the judge has discretion when it comes to whether or not to speak to the child regarding custody. So, if the judge is requiring that both parties agree that the child may speak to the judge, that ruling may be upheld. However, you can try to argue that your child IS MATURE AND IS ABLE TO CLEARLY ARTICULATE what his/her preference is as to where s/he wants to live, and why.
Most importantly, th judge will make a decision about custody based on what s/he thinks is in your child's best interest. Beyond listening to the child, the judge will look at any factor that s/he thinks is important to make this decision, including:
- The love, affection, and other emotional ties between the parents and the child;
- The ability of each parent to nurture the child and give him/her love, affection, guidance, adequate food, clothing, shelter, medical care, and a safe environment;
- The child's developmental needs and the ability of each parent to meet those needs, both now and in the future;
- How stable and adequate each parent's home environment is;
- The impact of extended family;
- The length of time the child has lived in each parent's home;
- The desirability of wanting to keep the child's home and community the same as it has been;
- The desire and ability of each parent to help make (and encourage) a close and continuing relationship between the other parent and the child;
- How moral the judge thinks each parent is, as it impacts the child;
- The mental and physical health of the parents, as that health impacts the child;
- The home, school, and community records of the child and the potential effect to those areas of any change;
- If the child is mature enough to decide what s/he wants, the judge may heavily consider the preference of the child. (The judge must also consider whether there are any factors/influences that may have affected the child's preference);
- Evidence of domestic violence, as defined by law;
- The actual or potential relationship/interaction of the child and anyone who lives in or frequently comes to the parents' households in relation to how it affects the child's best interests. The judge will consider that person's history of abusing others or causing others to fear abuse;
- Whether either parent made false allegations of child abuse against the other parent; and
- Any other factors the judge thinks might be relevant to a particular child custody case.*
Note: The judge may appoint an investigator to talk to any person who may have information about the child and about any potential custody/visitation arrangements. The investigator then issues a report to all parties. Unless the court finds that you cannot afford to pay the investigator, you and/or the other parent will have to pay for the investigator's services.**
So, the more information, documentation, witnesses, school records, medical records, etc. that you can obtain to support your position, the better your case will be.
I hope you find this information useful.
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