The State Bar Association of North Dakota Fall 2013 Gavel Magazine | Page 18

FAMILY LAW
SECTION QUIZ,
continued

and Bill start a custody proceeding to gain
custody of Dick and Harry. Do Marge and
Bill have any chance of prevailing in this
proceeding?
a. No, because they have no standing to
bring such a proceeding.
b. No, because Denise, Dick and Harry’s
mother, has a constitutional right to
the custody and companionship of her
children.
c. Yes, because Dick and Harry are teenagers and they want to live with Marge
and Bill instead of with their mother.
d. Yes, but only if the court finds that
exceptional circumstances exist such that
Marge and Bill must be awarded primary
residential responsibility for Dick and
Harry to prevent serious harm or detriment to them.
ANSWER: d. N.D.C.C. § 14-09-29, subd.
1 provides in relevant part that “[a] court
issuing an order that deals with parenting
rights and responsibilities of a child entered
under this chapter shall award the parental
rights and responsibilities concerning the
child to a person, agency, organization,
or institution as will, in the opinion of the
court, promote the best interest and welfare
of the child.” The North Dakota Supreme
Court has stated, however, that “parents
have a paramount and constitutional
right to the custody and companionship of
their children superior to that of any other
person” and that custody may be awarded
to a third party only in exceptional circumstances in order to prevent serious harm or
detriment to a child.” The Court has further
noted that in each case in which it has
upheld a third party custody placement, the
child had developed “a psychological parent
relationship with the third party.” Edwards v.
Edwards, 2010 ND 2, ¶ 8, 777 N.W.2d 606,
quoting Hamers v. Guttormson, 2000 ND
93, 610 N.W.2d 758.
10. Mary and John married, had two
daughters, Jill and Joni, and then divorced.
Mary has residential responsibility for Jill
and Joni. John visits Jill and Joni sporadi-

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cally and pays child support sporadically.
He has significant child support arrears.
Three years ago, Mary married Jeff, who
gets along very well with Jill and Joni. Jeff
now wants to adopt Jill and Joni, who are
8 and 9 years old. John has indicated that
he will consent to his parental rights being
terminated so that Jeff can adopt Jill and
Joni. Which of the following statements is
true?
a. Jeff cannot adopt Jill and Joni because
John still owes back child support.
b. If Jeff adopts Jill and Joni, John won’t
have to pay child support after the adoption but will still be responsible for his
child support arrears, unless Mary and
any assignee of Mary’s consent in writing
to waive the past due support and the
court approves the agreement.
c. If Jeff adopts Jill and Joni, John will not
have to pay future child support and his
arrears will be forgiven.
d. If Jeff adopts Jill and Joni, John will
still be responsible for future child support and his child support arrears.
ANSWER: b. Under N.D.C.C. §14-0908.21, a termination of parental rights
terminates that parent’s duty to support the
child once the child is adopted, but does not
relieve the parent of the duty to pay any
unpaid child support. N.D.C.C. §14-0909.32 provides in relevant part that “[a]
n agreement purporting to waive pastdue child support is void and may not be
enforced unless the child support oblige and
any assignee of the obligee have consented to
the agreement in writing and the agreement
has been approved by a court of competent
jurisdiction.”
11. In number 3 above, which individuals
must consent to Jeff adopting Jill and Joni?
a. Only John
b. Only Mary
c. John and Mary
d. John, Mary, Jill, and Joni
ANSWER: c. N.D.C.C. § 14-15-05 provides
that the mother and father of the minor
child to be adopted must consent and that

the minor child must consent if more than
ten years of age, unless the court dispenses
with the minor child’s consent. Jill and Joni
do not have to consent because they are not
more than ten years of age.
12. Dick and Jane were high school sweethearts. Jane became pregnant and during
the summer between her junior and senior
year of high school gave birth to a boy.
Dick, who was 17 years old, signed a Recognition of Parentage shortly before the
baby’s birth and attended the baby’s birth.
Upon the baby’s birth, the hospital where
the baby was born immediately filed the
Recognition of Parentage with the North
Dakota Department of Health. The baby
lived with Jane and her parents until Jane
graduated from high school, at which time
she moved out of her parents’ home, got
her own apartment, and applied for services at Regional Child Support, naming
Dick as the baby’s father. Dick has started
to wonder if his son is really his child since
both he and Jane have dark hair and brown
eyes and the baby has red hair and green
eyes, just like Dick’s best friend Jake. Dick
confronts Jake who acknowledges that he
had sexual relations with Jane approximately 9 months before the baby was born.
Dick wants to rescind his acknowledgment
of paternity and comes to you for advice.
What do you tell him?
a. The acknowledgment of paternity is
invalid since Dick was only 17 when he
signed it.
b. The acknowledgment of paternity is
invalid since Dick signed it before the
baby was born.
c. Dick cannot rescind the Acknowledgment of Paternity because it has been
more than sixty days since its effective