Child Support Enforcement (CSE)

General Frequently Asked Questions

Q. I am not being allowed visitation with my child like I think I should be. What can I do?

A. The Child Support Enforcement program does not provide services relating to the establishment or enforcement of visitation. There are a number of things, however, that may be helpful for you to know.

• The enforcement of child support and the enforcement of visitation are separate issues. Child support and visitation are both considered to be rights of the child. Because a child is denied one right does not mean that the child should be denied another right. Therefore, nonpayment of child support does not excuse frustration of visitation, nor does frustration of visitation excuse nonpayment of child support.

• If you wish to pursue a visitation issue in court, you have the option of either hiring an attorney to represent you or representing yourself. If you need assistance with a visitation issue, you may wish to hire an attorney. If you believe you cannot afford to hire an attorney, you may be able to get legal help at a reduced cost. See the State Bar Association of North Dakota's (SBAND's) website under Resources for the Public for more information on the options available.

You may also wish to represent yourself (that is, without an attorney's help). If so, the North Dakota Supreme Court's website has forms and instructions available through Self Represented Visitation Assistance Forms. These forms and instructions are to be used only if there is already a court order giving you or the other parent visitation rights.

• You may be awarded reasonable attorney's fees and costs. State law at N.D.C.C. § 14-09-24 provides that, in a court proceeding in which there is a dispute over visitation, the court shall 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.

Visitation may be enforced by the court through child support enforcement remedies. This law also provides that the court may use any remedy that is available to enforce a child support order, as long as the remedy is appropriate for visitation enforcement.

• There are a number of rights and duties that may be included in the court order. State law at N.D.C.C. §14-09-28 provides that each parent of a child has a number of visitation (and custody) rights and duties. Rights include the right to access various records of the child; the right to attend school conferences; and the right to reasonable access to the child by letter, telephone, and electronic means. Duties include the duty to inform the other parent if the child has a serious accident or serious illness; the duty to immediately inform the other parent of a change in home telephone number and address; and the duty to keep the other parent informed of the name and address of the school the child attends. With some exceptions, these rights and duties are to be included in a visitation order.

• When a child support order is being established or modified, the amount of child support may be adjusted to consider extended visitation. State law at N.D.C.C. § 14-09-09.7(1)(e) requires that the Child Support Guidelines (the administrative rules used to calculate the amount of child support to be ordered) include consideration of extended periods of time a minor child spends with the noncustodial parent.

The Guidelines address this by allowing an adjustment for extended visitation. For this purpose, extended visitation means there is a court order providing for visitation between the noncustodial parent and a child which exceeds sixty of ninety consecutive nights or an annual total of one hundred sixty-four nights. (See N.D. Admin. Code N.D.C.C. § 75-02-04.1-08.1 of the North Dakota Child Support Guidelines.) The specific calculation of the adjustment may be better understood by looking at the Guidelines form that is used for such calculation (Schedule D - Adjustment for Extended Visitation).

Three official interpretations regarding this section of the Guidelines have been issued to address frequently asked questions:

• IC-CO-00-07 Extended Visitation - Applicability Determined by Visitation Schedule in Court Order
• IC-CO-00-09 Split Custody and Extended Visitation - Extended Visitation Adjustment to be Completed Prior to Split Custody Calculation
• IC-CO-01-13 Adjustment for Extended Visitation - Number of Visitation Nights to be Counted in the Calculation.)

• When a child support order is being established or modified, the amount of child support may be adjusted to consider visitation-related travel expenses. The Guidelines also allow for a downward deviation of the child support amount based on a noncustodial parent's reduced ability to pay child support because of travel costs directly related to the purpose of visiting the child. The deviation must be in the best interest of the child and is to take into consideration the amount of court-ordered visitation and, when such history is available, actual expenses and practices of the parties. (See N.D. Admin. Code § 75-02-04.1-09(2)(i) of the North Dakota Child Support Guidelines.)

 

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