Grandparent rights in North Dakota

Direct Answer: Under North Dakota law, grandparents (including great-grandparents) may be granted visitation or, in limited cases, custody of grandchildren if certain strict statutory and constitutional standards are met. These rights are governed primarily by N.D. Cent. Code § 14-09-05.1 for visitation and N.D. Cent. Code ch. 14-09.4 for custodial claims.

1. Governing Law: N.D. Cent. Code § 14-09-05.1

The statute allows a district court to grant reasonable visitation rights to a grandparent or great-grandparent of an unmarried minor child if the court finds that:

Visitation is in the best interests of the child, and
It does not interfere with the parent–child relationship.[2][4]

The court considers factors such as the existing relationship between the grandparent and the grandchild, the level of contact, and how visitation may affect family dynamics.[4]

2. Constitutional Limitations — Parental Rights

The North Dakota Supreme Court has repeatedly emphasized that parents’ rights to the care and control of their children are fundamental and protected by the Fourteenth Amendment’s Due Process Clause. In Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285, the court held a prior version of the grandparent visitation statute unconstitutional because it failed to give deference to parents’ decisions about visitation.[3]

The court concluded that the statute impermissibly allowed courts to override parental choices based solely on a “best interests of the child” standard, which was insufficient to overcome the constitutional presumption in favor of parental autonomy.[3]

Following Hoff, the legislature revised § 14-09-05.1 to ensure that courts presume a parent’s decision regarding visitation is in the child’s best interest, placing the burden on the grandparent to prove otherwise.[1][4]

3. Application and Case Law

In In re S.B., 2014 ND 51, 844 N.W.2d 691, the North Dakota Supreme Court reaffirmed that grandparents have no rights equivalent to parents and that visitation cannot be ordered in a manner comparable to a non-custodial parent’s parenting time. The court may only award limited, reasonable visitation if the grandparent proves both statutory elements under § 14-09-05.1.[2]

4. Custody (Psychological or Consistent-Caretaker Grandparents)

Under N.D. Cent. Code ch. 14-09.4, a grandparent may seek custody only in exceptional circumstances—typically where the grandparent has been a consistent caretaker or psychological parent to the child. The grandparent must demonstrate by clear and convincing evidence that denying custody or visitation would harm the child and that the parent’s decision is contrary to the child’s welfare.[5]

5. Divorce, Death, or Adoption of Parents

Divorce: Grandparents may petition for visitation during or after the parents’ divorce if the statutory standards are satisfied.[4]
Death of a Parent: A surviving grandparent may request visitation under the same conditions.[4]
Adoption (by a stepparent): The court may still grant visitation if it serves the child’s best interests, although adoption typically terminates the original grandparents’ legal relationship unless the court orders otherwise.[4]

Summary:

Grandparent visitation and custody rights in North Dakota are carefully limited by both statute and constitutional law. The key principles are:

The parent’s decision is presumed correct.
The burden of proof lies with the grandparent.
The best interests of the child must be shown without unduly infringing the parent–child relationship.