Grandparents seeking visitation with grandchildren in North Dakota have some good news and some bad news. The good news is that grandparents can sue for visitation in most circumstances. The bad news is that the grandparents bear a heavy burden of proof in showing that they should be granted visitation with a grandchild.
What the Law Says
The law is fairly simple. It states that grandparents, including great-grandparents, may be granted "reasonable" visitation rights if the court finds that visitation would be in the best interests of the child and would not interfere with the parent-child relationship.
The court is directed to consider the amount of personal contact that has occurred between the grandparents or great-grandparents and the child and the child's parents.
An order for grandparent visitation may be granted in conjunction with a divorce proceeding, but visitation in North Dakota isn't limited to families disrupted by divorce, death or other circumstances. It is legally possible for grandparents to be awarded visitation with grandchildren living in an intact family. That does not, however, mean that it is likely.
Some Historical Background
North Dakota first passed a grandparent visitation law in 1983. It had the basic provisions outlined above. Ten years later the law was amended to provide that grandparents should be awarded visitation unless it was shown that visitation was not in the best interest of the child. This provision essentially shifted the burden of proof from the grandparents to the parents.
Instead of grandparents having to prove that visitation would be in the child's best interests, the parents had to prove that it would not.
In the 1999 case of Hoff v. Berg, The North Dakota Supreme Court found the amended law unconstitutional, citing that it violated parental rights. The very next year the U.S. Supreme Court made a similar decision about a Washington State law in Troxel v. Granville.
In fact, in its opinion the court cited Hoff v. Berg and similar cases in other states, The court found that "...the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance."
Following these two court decisions, the law in North Dakota was changed once more. Since the original incarnation of the law had caused no constitutionality issues, the legislature voted to return the law to its 1983 version.
More Provisions of the Law
The law also states that mediation may be required as a part of the process of resolving disputes over visitation.
In North Dakota adoption cuts off grandparent visitation rights unless the adopting party is a stepparent or a grandparent.
Two Additional Court Cases
2005 court case shows that the courts are not completely hostile to the concerns of grandparents. In the case Interest of D.P.O., an appeals court upheld the grandparents' visitation even though the father had testified that it was disruptive to the parent-child relationship. The court recognized that the father and grandparents had a "contentious" relationship but stated that the relationship was a "two-way street" and that both parties should put their differences aside for the good of the grandchild.
In a 2014 case, In regards to S.B., M.B., and B.B a lower court awarded grandparents visitation over the parents' objections, ruling that the parents had presented no credible evidence to support their position. The North Dakota Supreme Court overturned the decision, stating that the burden of proof should not be on the parents. The court sent the case back to the lower court to be better adjudicated. Instead, the parents of the children in question moved to another state, and there is no evidence of further legal procedures.
In this same case, the Supreme Court commented on a separate issue. The lower court had been generous in awarding the grandparents time, granting them one weekend a month, time on several holidays and five days in the summers. The North Dakota Supreme Court suggested that such a schedule was more appropriate for a non-custodial parent than for a grandparent and suggested that, if the lower court wanted to award grandparenting time, it should reduce the amount.