Section 75-02-01.2-15 - Continued absence of a parent1. For purposes of this chapter: a. "Deprived of parental support or care by reason of the continued absence of a parent" means a situation that occurs when all of the following factors are present:(1) The parent is physically absent from the home;(2) The nature of the parent's absence is such as to interrupt or terminate the parent's functioning as a provider of maintenance, physical care, or guidance for the child; and(3) The known or indefinite duration of the absence precludes relying on the parent to perform the parent's functions in planning for the present support or care of the child.b. A "parent's absence is such as to interrupt or terminate the parent's functioning as a provider of maintenance, physical care, or guidance for the child" only if one of these three functions is totally interrupted or finally terminated.2. A determination that a parent's absence has or has not interrupted or terminated the parent's functioning must be supported by information provided by the applicant or otherwise available to the county agency.3. Except as provided in subsections 4 and 5, if all three of the conditions for showing deprivation by reason of the continued absence of a parent are met, the reason for the parent's absence and the length of the parent's absence is immaterial.4. A parent who is performing active duty in uniformed service is "absent from the home" only if there is evidence that continued absence would have existed irrespective of the parent's serving in uniformed service. Acceptable evidence that such an absence exists includes proof of legal separation, desertion, or divorce, either final or in process. If there has been no legal action taken, some indication of how the parent came to be absent must be provided.5. A parent temporarily living apart from the child or children while attending school or vocational training or working or seeking work in another community does not meet the requirements for continued absence as long as the parent continues to function as a parent, even if the level of support or care is deficient or diminished.6. Types of parental absences frequently giving rise to dependency in children include: a. Divorce. The continued absence of a parent may be established as the result of divorce.b. Separation. Legal separation is an arrangement by which a husband and wife live apart, subject to a court order that may divide the parties' property, provide for spousal or child support, and provide for custody and visitation of children, but remain married. Such court orders may be temporary or permanent. Separation by mutual consent or agreement involves the discontinuance of the marital relationship without legal action. Continued absence of a parent as a result of this arrangement can be established if there is no collusion between the parents to render the family eligible for temporary assistance for needy families.c. Imprisonment. Imprisonment of a parent is a type of parental absence that creates dependency among children. Continued absence exists only if the parent is sentenced to and serves a thirty-day or longer term of incarceration unless:(1) The term actually served is less than the sentence imposed;(2) The term served is shortened by order of the court; and(3) Assistance has been issued before information about the shortened term is received by the county agency.d. Unmarried parenthood. A child born out of wedlock is deprived of parental support by reason of continued absence of a parent if the child's parents do not reside together.e. Desertion. Desertion is the voluntary and willful abandonment, by a parent, of the parent's child or children without making adequate provision for the care and support of the child or children.N.D. Admin Code 75-02-01.2-15
Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2011.General Authority: NDCC 50-09-02, 50-09-25
Law Implemented: NDCC 50-09-02