North Dakota Code > Title 14 > Chapter 14-09 > § 14-09-06.6 - Limitations on postjudgment modifications of primary residential responsibility
Current as of: 2009 1. Unless agreed to in writing by the parties, or if included in the parenting plan, no motion for an order to modify primary residential responsibility may be made earlier than two years after the date of entry of an order establishing primary residential responsibility, except in accordance with subsection 3. 2. Unless agreed to in writing by the parties, or if included in the parenting plan, if a motion for modification has been disposed of upon its merits, no subsequent motion may be filed within two years of disposition of the prior motion, except in accordance with subsection 5. 3. The time limitation in subsections 1 and 2 does not apply if the court finds: a. The persistent and willful denial or interference with parenting time; b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or c. The primary residential responsibility for the child has changed to the other parent for longer than six months. 4. A party seeking modification of an order concerning primary residential responsibility shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. The court shall set a date for an evidentiary hearing only if a prima facie case is established. 5. The court may not modify the primary residential responsibility within the two-year period following the date of entry of an order establishing primary residential responsibility unless the court finds the modification is necessary to serve the best interest of the child and: a. The persistent and willful denial or interference with parenting time; b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or c. The residential responsibility for the child has changed to the other parent for longer than six months. 6. The court may modify the primary residential responsibility after the two-year period following the date of entry of an order establishing primary residential responsibility if the court finds: a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and b. The modification is necessary to serve the best interest of the child. 7. The court may modify a prior order concerning primary residential responsibility at any time if the court finds a stipulated agreement by the parties to modify the order is in the best interest of the child. 8. Upon a motion to modify primary residential responsibility under this section, the burden of proof is on the moving party. 9. If a motion for change of primary parental responsibility is filed during the time a parent is in active duty service, the court may not enter an order modifying or amending a previous judgment or order, or issue a new order, which changes the child's placement that existed on the date the parent was called to active duty service, except the court may enter a temporary order concerning residential responsibility which is in the best interest of the child. The temporary order must explicitly provide that residential responsibility must be restored to the service member upon the service member's release from active duty service, unless the court finds by clear and convincing evidence that restoration of residential responsibility would not be in the best interest of the child. If an original decision concerning primary residential responsibility is pending and the service member is alerted for active duty service, or is absent for active duty service, the court may not issue a permanent order until the return of the service member from active duty. The court may issue a temporary order concerning primary residential responsibility in the best interest of the child for the time period of the active duty service. This section does not prevent a service member from consenting to a modification that continues past discharge or release from active duty service or to agreeing to a permanent order before release from active duty service. For purposes of this section, "service member" means a member of the national guard or a reserve unit of the United States armed forces and "active duty service" means an order to active duty under United States Code title 10. ________________________________________________________________________
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