Foster-Only Relationship Cannot Create Psychological-Parent Custody Rights in North Dakota

Introduction

In the Interest of M.R.M.-B., 2026 ND 82 is a North Dakota Supreme Court decision addressing the boundary between (1) North Dakota’s judicial doctrine allowing “psychological parents” to obtain custody/visitation in “exceptional circumstances,” and (2) the Legislature’s 2019 enactment of the Uniform Nonparent Custody and Visitation Act, N.D.C.C. ch. 14-09.4.

The biological father, Aaron Monkman, appealed an amended judgment granting Megan and Logan Hackmann (the child’s former foster parents and intervenors) primary residential responsibility and sole decision-making authority, while restricting Monkman to supervised parenting time and setting child support. The core issue became whether foster parents may claim “psychological parent” status—and thus pursue custody/visitation—when their relationship with the child arose solely from foster placement.

Summary of the Opinion

The Supreme Court reversed and remanded. It held that although N.D.C.C. § 14-09.4-19 preserves North Dakota’s equitable “psychological parent” doctrine outside chapter 14-09.4, the Court will not extend that doctrine to allow custody/visitation claims by a nonparent whose relationship with the child is based solely on having served as the child’s foster parent, consistent with the Legislature’s policy choice in N.D.C.C. § 14-09.4-02(3).

The Court also clarified that parental consent is not a prerequisite to establishing a psychological-parent relationship (though the foster-parent limitation independently controlled this case). It further affirmed—on the existing record—that restricting Monkman to supervised parenting time was not clearly erroneous, and it rejected Monkman’s child-support deviation argument because no deviation was requested in the district court. The Hackmanns’ request for appellate attorney’s fees under N.D.R.App.P. 38 was denied.

Analysis

Precedents Cited

1) Appellate preservation and the Court’s duty to apply the correct law

  • Matter of Didier, 2019 ND 263 (quoting In re R.A.S., 2008 ND 185): used for the general rule that issues not raised below are usually not addressed on appeal—even constitutional issues.
  • Kaspari v. Kaspari, 2023 ND 207 (quoting Trosen v. Trosen, 2022 ND 216): used for the rule that inadequately articulated or briefed arguments are generally not considered.
  • Wardner v. Porath, 2025 ND 228 (quoting State v. Holecek, 545 N.W.2d 800, and referencing State v. Larsen, 515 N.W.2d 178) and D.G.L. Trading Corp. v. Reis, 2007 ND 88: central to the Court’s decision to reach the statutory issue anyway, emphasizing the Court’s “duty” to apply the relevant statutes correctly to avoid affirming incorrect legal results due to gaps in briefing.
  • Meridian Prop. Mgmt., LLC v. Cordie, 2026 ND 52; Boyda v. Boyda, 2025 ND 193 (quoting Brouillet v. Brouillet, 2016 ND 40); Gerszewski v. Rostvet, 2024 ND 141 (quoting Albertson v. Albertson, 2023 ND 225): cited to frame the fairness principle that trial courts should have an opportunity to rule; here, the district court had ruled on the key statutory interaction.

2) Statutory interpretation methodology

  • Bang v. Cont'l Res., Inc., 2025 ND 131 and Cass Cnty. v. KNB Props. LLC, 2024 ND 226: de novo review for statutory interpretation.
  • Int. of K.I.B., 2025 ND 157; Kroschel v. Levi, 2015 ND 185 (quoting Martin v. Stutsman Cnty. Soc. Servs., 2005 ND 117); Fahey v. Cook, 2024 ND 138; RMM Props., L.L.L.P. v. City of Minot, 2024 ND 213 (quoting BASF Corp. v. Symington, 512 N.W.2d 692); S.E.L. v. J.A.P., 2019 ND 16 (quoting Altru Specialty Servs., Inc. v. N.D. Dep't of Hum. Servs., 2017 ND 270): collectively support reading statutes as a whole, harmonizing related provisions, and avoiding surplusage.
  • State v. Sapa, 2022 ND 197 and N.D.C.C. § 1-02-07: specific provisions control over general ones if irreconcilable. (The Court ultimately harmonized the provisions rather than treating them as irreconcilable.)

3) Legislature as primary policy-maker; limits on judicial common-law expansion

  • In re Mangelsen, 2014 ND 31 and Montana-Dakota Utils. Co. v. Johanneson, 153 N.W.2d 414: invoked to emphasize that the Legislature sets policy and courts apply the statute as written.
  • Potts v. City of Devils Lake, 2021 ND 2: reinforces that public policy is declared by legislative action.
  • N.D.C.C. § 1-01-06 (no common law where law is declared by the code) and McAllister v. McAllister, 2010 ND 40 (Crothers, J., concurring): used to justify restraint from expanding the psychological-parent doctrine in a manner inconsistent with codified legislative policy.

4) Psychological parent doctrine (pre-2019 case law)

  • Hamers v. Guttormson, 2000 ND 93: provides the definition/description of a psychological parent and stresses that establishing the relationship only triggers the further “exceptional circumstances” inquiry.
  • Edwards v. Edwards, 2010 ND 2 and McAllister v. McAllister, 2010 ND 40: synthesize the doctrine— parents have a paramount constitutional right, but exceptional circumstances may justify placement with a third party to prevent serious harm/detriment, typically where a child has been in the third party’s physical custody long enough to form a psychological-parent bond.
  • Visitation applications of the doctrine: Stoddard v. Singer, 2021 ND 23, McAllister v. McAllister, 2010 ND 40, Edwards v. Edwards, 2010 ND 2, and Love v. DeWall, 1999 ND 139.
  • Additional foundational third-party custody/relationship cases cited to illustrate the historical universe of psychological-parent claimants: Patzer v. Glaser, 396 N.W.2d 740; Patzer v. Glaser, 368 N.W.2d 561; Daley v. Gunville, 348 N.W.2d 441; Mansukhani v. Pailing, 318 N.W.2d 748; In re D.G., 246 N.W.2d 892; Goter v. Goter, 1997 ND 28; Simons By & Through Simons v. Gisvold, 519 N.W.2d 585; Matter of Guardianship & Conservatorship of Nelson, 519 N.W.2d 15; In re D.P.O., 2003 ND 127.

5) Uniform-law interpretation

  • In re Est. of Gleeson, 2002 ND 211 and N.D.C.C. § 1-02-13: support interpreting uniform statutes to promote uniformity and consulting official comments.
  • Meuchel v. Red Trail Energy, LLC, 2024 ND 44 (quoting Shafer v. Scarborough, 2022 ND 233): used to justify reliance on the Uniform Act’s prefatory note, legislative notes, and comments.

6) Comparative out-of-state authority (illustrative)

  • In re Custody of A.F.J., 179 Wash. 2d 179: cited as an example of a jurisdiction allowing de facto parentage where there was a non-foster preexisting relationship even though the person later served as a foster parent.
  • Osterkamp v. Stiles, 235 P.3d 178: cited for the proposition that foster-parent time may not count toward establishing psychological-parent status.

7) Parenting time and child support standards

  • Vetter v. Vetter, 2026 ND 36; Taylor v. Taylor, 2022 ND 39 (quoting Hendrickson v. Hendrickson, 2000 ND 1 and Wilson v. Ibarra, 2006 ND 151): applied to uphold supervised parenting time where unrestricted parenting time is likely to endanger the child’s physical or emotional health.
  • Kolstad v. Claussen, 2025 ND 213 (quoting Woelfel v. Gifford, 2020 ND 197); Verhey v. McKenzie, 2009 ND 35 (quoting Hanson v. Hanson, 2005 ND 82); Schwalk v. Schwalk, 2014 ND 13; Edison v. Edison, 2023 ND 141 (quoting Bye v. Robinette, 2015 ND 276): used to reject a deviation argument not raised below and to restate that deviations require a request, proof, and specific findings.
  • Killoran v. Kaler, 2025 ND 64 and Wollan v. Innovis Health, LLC, 2024 ND 169: cited to justify addressing issues likely to arise on remand.

Legal Reasoning

  1. The Court reached an unbriefed statutory issue to apply the correct law. Even though Monkman did not appeal the district court’s view that chapter 14-09.4 was not exclusive, the Supreme Court emphasized its duty (under Wardner v. Porath and State v. Holecek) to apply relevant statutes correctly where the district court had ruled on the issue.
  2. Section 14-09.4-19 preserves psychological-parent claims as an equitable doctrine outside the Act. Using uniform-law interpretation principles and the Uniform Act’s materials, the Court held N.D.C.C. § 14-09.4-19 reflects a legislative choice not to nullify North Dakota’s preexisting psychological-parent precedents. Thus, chapter 14-09.4 is not the exclusive path for all nonparent claims.
  3. But the Court refused to expand “psychological parent” to foster-only relationships, given § 14-09.4-02(3). The key move was not to read § 14-09.4-19 as “overriding” § 14-09.4-02(3), but to treat § 14-09.4-02(3) as a clear legislative policy signal: North Dakota “does not recognize the right of a former foster parent to seek residential responsibility or visitation with a child” when the claim is based solely on foster status. The Court therefore declined to judicially extend its psychological-parent doctrine in a way that would be contrary to that policy.
  4. “Solely” means solely: no preexisting substantial relationship, and post-foster time was legally insufficient. The Hackmanns had no relationship with the child before foster placement. Their petition was filed the day after reunification, and the later post-foster placement with the Hackmanns (less than 30 days) could not, as a matter of law, provide “sufficient period of time to develop a psychological parent relationship.” Therefore, any psychological-parent finding necessarily rested solely on foster status, making the district court’s psychological-parent finding clearly erroneous.
  5. Parental consent is not a prerequisite to psychological-parent status—though that point did not save the Hackmanns. The Court rejected Monkman’s attempt to reframe the doctrine as consent-based. While many older cases involved voluntary placement, the Court noted cases like Love v. DeWall and Goter v. Goter where consent was not dispositive. The doctrine remains focused on the child’s best interests and avoiding serious harm/detriment.
  6. Supervised parenting time was affirmed on the record; child support deviation was procedurally forfeited. The Court held the district court’s supervised-parenting-time findings were detailed and supported by evidence (including expert testimony). On child support, the Court refused to entertain deviation arguments not presented to the district court.

Impact

  • Bright-line constraint on foster-parent-based psychological-parent claims. This opinion establishes that North Dakota courts will not recognize a foster parent as a “psychological parent” when the relationship with the child is solely the foster placement. That rule functions as a significant limitation on equitable third-party custody/visitation litigation by former foster parents.
  • Preservation of psychological-parent doctrine—but narrowed by legislative policy. The Court simultaneously confirms psychological-parent remedies survive outside chapter 14-09.4 via § 14-09.4-19, while treating § 14-09.4-02(3) as a controlling policy boundary against judicial expansion in the foster-care context.
  • Litigation focus shifts to “preexisting substantial relationship” and non-foster bases. The Court’s reliance on Uniform Act commentary signals that nonparents who later become foster parents may still pursue claims if they can prove an alternate, pre-placement substantial relationship (e.g., kinship caregivers). Foster placement alone will not do the work.
  • Practical effects in child welfare transitions. The decision reduces the risk that ordinary foster placements can later generate independent custody litigation against reunified parents, potentially reinforcing the child welfare system’s reunification goals—while leaving room for claims grounded in relationships that predate foster care.

Complex Concepts Simplified

Primary residential responsibility / decision-making authority
North Dakota’s allocation of where the child lives most of the time (residential responsibility) and who makes major decisions (education, medical care, etc.).
Psychological parent
A nonparent who, through daily care over time, develops a parent-like bond such that removing the child from that relationship could cause serious harm. Establishing the bond is not enough; the court must also find “exceptional circumstances” requiring placement/visitation to prevent serious detriment.
Exceptional circumstances / serious harm or detriment
The heightened threshold that can overcome a natural parent’s paramount custody rights—used to justify third-party custody or restrictive visitation findings when the child’s welfare would likely be endangered otherwise.
Uniform Nonparent Custody and Visitation Act (N.D.C.C. ch. 14-09.4)
A statutory framework governing many nonparent custody/visitation proceedings. In North Dakota, it includes a specific restriction: a nonparent may not maintain a proceeding “solely” because the person served as a foster parent.
Savings clause (N.D.C.C. § 14-09.4-19)
A provision stating that chapter 14-09.4 does not eliminate (“does not preclude”) equitable remedies already recognized elsewhere in state law—here, psychological-parent remedies. The Court read it as preserving the doctrine, but not authorizing its expansion contrary to declared legislative policy.

Conclusion

In the Interest of M.R.M.-B., 2026 ND 82 draws a decisive line: while North Dakota preserves equitable psychological-parent remedies outside the Uniform Act through N.D.C.C. § 14-09.4-19, a nonparent cannot be deemed a psychological parent when the relationship with the child is based solely on having served as the child’s foster parent, consistent with N.D.C.C. § 14-09.4-02(3).

The decision reinforces legislative primacy in family-policy choices, limits foster-parent-based third-party custody litigation, and clarifies that psychological-parent status is not conditioned on parental consent—but is constrained here by the Legislature’s explicit foster-parent limitation.