(a) Roster of Custody Investigators. The State Court Administrator shall maintain and monitor a roster of persons satisfying the qualifications under paragraph (b) to serve as custody investigators. The roster must include the custody investigator's name and
address. The roster must be updated and published on an annual basis and be available for inspection in the clerk of district court's office. The State Court Administrator may establish a reasonable fee for placement on the roster and a reasonable yearly renewal fee. Custody investigators appointed to provide services under this rule must be selected from the roster.
(a)(b)PreferredQualifications. To be listed on the roster and qualify as a custody investigator under N.D.C.C. §§§14-09-06.3 and 14-09-06.4, a person shouldshall provide
the State Court Administrator with written credentials indicating the person satisfies the following requirements:
(1) havea minimum of an Associate Degree in an academic field related
to child care, child development, or children’s services, or have; at least 5five years of experience in the delivery or supervision of child care or children’s services, child development services, or in the education of children; or a 40 hour program of
specialized custody investigation training;
(2) have completedcompletion of at least 18 hours of specialized custody
investigation training, unless the person has obtained 40 hours of specialized training
in accordance with subparagraph (1);
(3) complete 6completion of 18 hours of annual custody investigationinvestigation-related training each yearevery three years after receiving the 18initial
hours of specialized training;
(4) have the communication skills necessary to successfully conduct an
interview, prepare a written report, and make an oral presentation; and
(5) have nocriminal conviction or substantiated instance of child abuse
or neglect; and.
(6) have been designatedas a custody investigator by the presiding judge
of the district where the proceeding is pending.
(b)(c) Investigatory Responsibilities. A custody investigator shall:
(1) become knowledgeable about the child’s and family’s history and present situation by reviewing the court file; reviewing records and reports, including medical, law enforcement, psychological, psychiatric, andeducational records andreports; and researching information about any related criminal orchild protection proceeding, investigation, or allegation;
(2) obtain necessary authorizations for release of information;
(3) interview, as appropriate, social workers and probation officers to obtain background and current information regarding the child and family;
(4) interview, as appropriate, service providers (i.e. teachers, psychologists, psychiatrists, doctors, nurses, neighbors, and others) who are knowledgeable about the child’s and family’s past and present situation;
(5) interview, as appropriate, the child’s parents and siblings, and the people with whom the child resides or may reside, and other people who are significant in the child’s daily life;
(6) meet and observe the child in a manner consistent with the child’s developmental capabilities;
(7) observe, as appropriate, parent and child interaction;
(8) prepare a written report regarding the child’s best interests, including conclusions and recommendations and the facts upon which they are based;
(9) file the written report with the court and serve it on the parties at least 30 days prior to the hearing; and
(10) recommend, as appropriate, psychological evaluations, psychiatric evaluations, physical evaluations, parenting evaluations, chemical dependency evaluations, or other evaluations.
(c)(d) Court Proceedings. A custody investigator shall attend all court proceedings unless excused by the court and shall testify when requested. A custody investigator may not
call a witness, question a witness, file a motion, or act as a legal advocate.
(d)(e) Post Investigation Duties. The custody investigator, by order of the court, may assist in custody and visitation issues after submission of the report.
(f) Custody Investigator Review Board. The Custody Investigator Review Board
consists of nine members: three judges and one lawyer appointed by the Chief Justice, two lawyers appointed by the Board of Governors of the State Bar Association, and three lay custody investigators who are or have been listed in good standing on the custody investigator roster and who are appointed by the Chief Justice after consultation with the President of the State Bar Association. Board members are appointed for three year terms and may serve no more than three consecutive three-year terms. Of the members initially appointed and as determined by lot at the first meeting, one-third of the members will serve for one year, one-third will serve for two years, and one-third will serve for three years. Subject to the three term limit, each member is eligible for reappointment and serves until
the member's successor is appointed. The Chief Justice appoints the board chair. Expenses incurred by members in the performance of duties are reimbursed by the appointing authority.
(1) Board Responsibilities. The board, through panels established under this rule, shall receive and review complaints concerning the performance and conduct of custody investigators providing services under this rule.
(2) Complaints - Procedures for Review.
(A) All complaints must be submitted in writing to the chair of the board. The complaint must include facts underlying the complaint, must specify the misconduct that is the subject of the complaint, and must be signed by the complainant.
(B) Upon receipt of a written complaint, the chair of the board shall determine if the complaint is with regard to a pending case in which custody investigator services are being provided. If the complaint involves custody investigator conduct in a pending case, the chair shall inform the complainant
that the complaint may only be addressed before the court that is hearing the pending case, either by seeking removal of the custody investigator or by contesting the information or recommendation contained in the custody investigator's report or testimony. In pending cases, review of the complaint and communications with the complainant must be handled by the chair of the board in a manner that assures the judge presiding in the case remains uninformed about the complaint. If the complaint concerns conduct unrelated to a pending case, the following procedures apply:
(i) The chair of the board shall review the complaint to determine whether the allegations, if true, have merit. If the allegations are determined to be without merit, the complaint will not be reviewed further and the chair shall notify the complainant of the disposition.
(ii) If the chair of the board determines the allegations in the complaint, if true, have merit, the complaint must be referred to a panel of the board appointed by the chair for further consideration. The panel must consist of three members of the board, of which at least one panel member must be a lay custody investigator. The panel shall provide a copy of the complaint to the custody investigator and request a written response from the custody investigator within 30 days of receipt of the request. The request must identify specific issues in the complaint to which the panel desires a response. The custody investigator must provide a copy of the response to the complainant. The panel may, as circumstances warrant, request that the complainant and the custody investigator meet with the panel to review the allegations in the complaint.
(3) In reviewing a complaint, the panel shall consider whether the allegations in the complaint indicate any of the following forms of misconduct:
(A) failure to fulfill responsibilities required under paragraph (c), (d),
(B) violation of the code of conduct for custody investigators, which is included and incorporated in this rule as an Appendix;
(C) misrepresentation of qualifications to serve as a custody investigator;
(D) violation of state or local laws or court rules; or
(E) taking or failing to take any other action that would reasonably place the suitability of the person to serve as a custody investigator in
(4) Findings and Dispositions. In considering the complaint and the custody investigator's written response, the panel shall make findings regarding each of the specific issues in the complaint to which the panel requested a response. The
findings must indicate that either there is no merit to the issue based on the custody investigator's response or that there is merit to the issue. The panel shall determine whether the issues found to have merit indicate any form of misconduct identified under subparagraph (3). The panel may take any of the following actions: issue a
written reprimand, refer the custody investigator to additional training, require that the custody investigator be assigned a mentor for a specified period of time, or direct that the custody investigator be removed from the roster. The panel shall take into
consideration any prior complaints that resulted in the imposition of any of the identified actions. The complainant and the custody investigator must be notified in writing of the panel's disposition of the complaint. If the panel directs removal from the roster, the panel may specify the manner and time frame within which the person
may apply for placement at a later time on the roster.
(5) Confidentiality. A complaint and any associated records are confidential unless the panel has determined under subparagraph (4) that the complaint has merit. Confidential records may be disclosed only in response to a court order.
(6) Time frames for Disposition. Complaints must be resolved within 25 days of receipt of the complaint if the complaint involves a pending case. All other complaints must be resolved within 120 days of receipt of the complaint. These Time
frames may be extended by the chair of the board upon a finding by the chair that good cause exists for an extension.
(g) Custody Investigator Training. The State Court Administrator shall provide for regular training programs to satisfy the qualification requirements under paragraph (b)(2) and (3). The State Court Administrator shall provide for the development and maintenance
of a custody investigator manual to serve as a resource for those providing services under this rule and as a basis for custody investigator training programs.
Rule 8.6 was adopted, effective March 1, 2000; amended effective .The Supreme
Court anticipates making the qualifications for a custody investigator mandatory, and will review the matter one year after the effective date of this rule.
SOURCES: Procedure Committee Minutes of September 24-25, 1998, pages 8-15; Court
Services Administration Committee Minutes of April 7, 2006 and July 14, 2006.
CODE OF CONDUCT
This Code outlines goals that custody investigators must aggressively and actively strive to
achieve. It is not intended, however, to serve as a detailed investigative handbook, with specific
statutory or other legal requirements. This Code of Conduct establishes principles of professional
conduct and ethics aimed to ensure the proper performance of custody investigators in North Dakota.
Nothing is this Code absolves custody investigators from the obligation to comply with requirements
of the law or other rules of professional conduct that may apply to that individual.
When providing investigative services to the court, custody investigators should act with
care, reliability, and diligence. In phone calls, meetings, interviews, and other exchanges related to
the investigation, custody investigators should act in good faith and in a respectful and professional
manner. All activities must performed in a timely manner.
A custody investigator shall complete all necessary training requirements according to Rule
8.6 of the North Dakota Rules of Court, including engaging in continuing education to further
knowledge of custody investigations.
The custody investigator shall provide competent assistance to the court. This competence
implies the legal knowledge and professional skills reasonably necessary to provide investigative
A custody investigator shall preserve professional independence in the discharge of the
investigator's duties. An investigator should act in accordance with the law, free from all other
influence, rendering investigative services based upon the investigator's best knowledge. An
investigator should avoid any impairment of independence and must not permit professional
standards to be compromised by external pressure.
Reports, correspondence, and other documents prepared by custody investigators should
always reflect the highest quality work.
Truthfulness of Information
A custody investigator shall not knowingly give false, misleading, or inconsistent
information. An investigator shall not try to influence the court directly or indirectly by any ways and
means contradictory to the law or this Code.
When providing investigative services, a custody investigator shall adhere to the facts. Facts
should be presented in as neutral and clear a manner as possible. The facts should speak for
themselves, and conclusions and analysis should not involve exaggeration, adjectival assistance, or
other editorial overemphasis.
Any and all actions must be not be based on race, color, religion or faith, sex, birth, political
opinion, nationality, country of origin, or any other similar criteria.
Confidentiality and record maintenance are obligations of the custody investigator. All
custody investigators shall maintain confidentiality and protect against unauthorized disclosure and
usage of information acquired in connection with the investigation. Confidentiality is required for
all forms of transmission: verbal, written, digital, manual or hardcopy records, videos, and pictures,
Conflicts of Interest
A conflict of interest arises when a custody investigator has competing, incompatible duties
or when there is a conflict between a custody investigator's private interests and the investigator's
professional responsibilities. A custody investigator must exercise independence, act with loyalty,
and preserve the confidentiality of the case as necessary. The custody investigator should avoid
cases in which there is a conflict of interest. If in the course of providing custody investigation
services a conflict of interest arises, the custody investigator is obligated to inform the parties and
the court about the present conflict and the nature and extent of the conflict. After full disclosure,
the custody investigator may continue to investigate the matter with the express written consent of
the parties only if this will not lead to an unjustified compromise of the parties' interests or to a
violation of other provisions of this Code.
Communications with Judicial Officer
The custody investigator shall not communicate with a judicial officer, without notice to all
parties, concerning a case for which the person is serving as an investigator except that the
investigator may communicate with a judicial officer about such matters as scheduling, emergencies,
or purely administrative matters that do not deal with substantive matters or issues involved in the
Withdrawal of Services
The custody investigator shall not withdraw services unless there is good cause. Good cause
may include conflict of interest or inability to provide a competent, professional investigation. If the
custody investigator must withdraw services for good cause, the investigator should try to do so in
such a manner that neither the parties' interests nor the best interests of the child are adversely
The custody investigator shall charge a reasonable fee for the investigator's services
commensurate with experience and ability. The investigator shall provide an accounting for time
on each investigation and shall make fees known to the parties in advance of the investigation.