Background
M.R.M.-B. was born in 2020 to Aaron Monkman and Kristin Binney, who were never married. In March 2022, after Binney observed bruising on the child during a FaceTime visit and the child was returned to her care appearing underfed, dehydrated, and having lost two and a half pounds, Cass County Human Service Zone removed M.R.M.-B. from both parents’ care. The child was placed with Megan and Logan Hackmann as foster parents, where she remained for approximately two years. In March 2024, the juvenile court returned M.R.M.-B. to Monkman and Binney, but the very next day the Hackmanns filed a petition seeking residential responsibility, parenting time, and child support.
After procedural skirmishing over intervention rights, the district court allowed the Hackmanns to intervene on the theory that North Dakota’s Uniform Nonparent Custody and Visitation Act (N.D.C.C. ch. 14-09.4) was not the exclusive avenue for nonparent custody claims and that a “psychological parent” claim remained cognizable in equity. Following a December 2024 evidentiary hearing, the district court entered an amended judgment awarding the Hackmanns primary residential responsibility and sole decision-making authority over M.R.M.-B., with Monkman limited to supervised parenting time through a supervised visitation program. Monkman appealed.
Although Monkman did not raise the statutory standing issue on appeal, the Supreme Court exercised its independent duty to apply controlling law correctly and solicited supplemental briefing on whether N.D.C.C. § 14-09.4-02(3)—which bars nonparents from pursuing custody or visitation “solely because” they served as a foster parent—foreclosed the Hackmanns’ psychological-parent claim.
The Court’s Holding
The Supreme Court reversed the amended judgment and remanded for further proceedings, declining to extend North Dakota’s judicially recognized psychological-parent doctrine to foster parents. The court first confirmed that N.D.C.C. § 14-09.4-19 (drawn from Section 20 of the Uniform Act) preserves pre-existing equitable psychological-parent claims outside the statutory framework, so the Uniform Act is not the exclusive path for nonparent custody. However, the court held that § 14-09.4-02(3) simultaneously represents a clear legislative policy declaration that a nonparent whose entire relationship with a child stems solely from having served as that child’s foster parent may not obtain custody or visitation through any avenue—including a psychological-parent claim.
The court also rejected Monkman’s argument that parental consent is a prerequisite to psychological-parent status, noting that North Dakota precedent has never required it and that centering the analysis on consent rather than the child’s best interests would be inappropriate. Nevertheless, because the legislature expressly opted into the bracketed prohibition of § 14-09.4-02(3) when it enacted the Uniform Act in 2019—a choice the Uniform Act’s own commentary explains signals that the state does not recognize former foster parents’ right to seek custody or visitation—the court refused to judicially expand the psychological-parent doctrine in a manner contrary to that declared public policy. A nonparent whose relationship with the child is based solely on serving as a foster parent cannot be deemed a psychological parent under North Dakota law.
The court denied the Hackmanns’ request for attorney’s fees under N.D.R.App.P. 38 and remanded to the district court for further proceedings consistent with the opinion, including analysis of whether the Hackmanns had any basis for their claim beyond the foster placement itself.
Key Takeaways
- North Dakota’s Uniform Nonparent Custody and Visitation Act (N.D.C.C. ch. 14-09.4) is not the exclusive mechanism for nonparent custody claims; the equitable psychological-parent doctrine survives alongside it by virtue of the § 14-09.4-19 savings clause.
- A nonparent whose relationship with a child is based solely on having served as that child’s foster parent cannot establish psychological-parent status under North Dakota law; § 14-09.4-02(3) reflects a legislative policy choice the courts are bound to respect.
- Parental consent to a third party’s relationship with a child has never been, and remains, a non-requirement for psychological-parent status in North Dakota—the focus is on exceptional circumstances and the child’s best interests.
- The Supreme Court may raise and decide controlling statutory questions sua sponte on appeal when it is the court’s duty to apply the law correctly, even if the parties failed to brief the issue.
Why It Matters
This decision draws a firm line between foster parents and the class of third parties—typically stepparents and close family members—who may invoke North Dakota’s psychological-parent doctrine to seek custody or visitation. By tying the statutory prohibition directly to the broader equitable doctrine, the court ensures that the legislature’s 2019 policy choice cannot be circumvented by repackaging a foster-care relationship as an equitable claim. Attorneys representing foster families seeking long-term custody should understand that absent a relationship with the child that predates or extends meaningfully beyond the foster placement itself, North Dakota courts will not treat that placement as a sufficient foundation for psychological-parent status.
The decision also reinforces a practical appellate-procedure principle: North Dakota’s Supreme Court will apply controlling statutes independently of the parties’ briefing when doing otherwise would result in affirmation of an incorrect legal outcome—a notable reminder that issue preservation, while important, does not constrain the court’s obligation to get the law right.