I’ve reported on the progress of a House of Representatives bill in Minnesota that would establish a presumption of shared parenting. It also would make other salutary changes to custody law regarding parenting plans, claims of domestic violence, etc.
Well, now it seems that the State of South Dakota is up to something very similar except that its bill is further along. This article tells us that House Bill 1255 was just voted out of committee by a vote of 8-5 (Argus Leader, 2/16/11). It now will be considered by the full House.
Here’sthe text of the bill which is simplicity itself. If passed, the bill would establish a presumption of shared physical custody post-divorce or separation in all cases in which legal custody would be shared. Shared physical custody is defined as equal parenting time.
As with all presumptions, the burden of overcoming the presumption would be on the person asking a court to do so. That person would have to prove by clear and convincing evidence that the best interests of the child required something other than equal time-sharing.
And, like the Minnesota bill, the South Dakota bill would require parents to submit a parenting plan. It would also require judges to make findings of fact and conclusions of law if either parent requests it.
That last is not as insignificant as it sounds. Often, parents are shocked at what family courts do and, as often as not, the courts don’t explain why they issued a particular order. Likewise, appellate courts are often in the dark about why a family court did what it did. Requiring findings of fact and conclusions of law forces judges to say in writing why they gave custody to one person and denied it to the other.
As to domestic violence, the bill states that a conviction or proven history thereof would create its own rebuttable presumption against joint custody. That would allow a mother or father the opportunity to convince a court that whatever had happened should not prevent custody. So, if the event happened a long time ago or was minor in nature, it might be ruled insufficient to deny custody.
According to the article, the simple fact that there’s a huge difference between the number of mothers with primary or sole custody and the number of dads with same was important to some of the committee members. The article goes on to point out that some 85% of custodial parents are mothers.
The gulf between genders in custody cases swayed Rep. Don Kopp, R-Rapid City.
“Saying that only 15 percent of the fathers are fit to have custody isn’t right,” Kopp said.
To no one’s surprise, there are opponents of the bill. One is cited as disagreeing with the 85%/15% figures while offering none of her own. To her I commend the United States Census Bureau data on custodial and non-custodial parents whose percentages have remained astonishingly the same for over a decade.
Not content with unawareness of basic, easy-to-find information, she proceeded to make the more or less standard claim that the bill would deprive judges of discretion in deciding custody. Of course, it would do no such thing. The bill would simply do what it says – establish a presumption of equally-shared parenting. And, like all legal presumptions (like that of innocence in a criminal proceeding) it can be rebutted.
Another opponent
rejected arguments that shared parenting is always beneficial.
“That’s not necessarily the case – some parents are drunks, they’re runners and they’re not at home,” Abdallah said.
That argument would make sense if anyone anywhere any time had said that equally-shared parenting was always better than another kind, but since no one has, it’s hard to see what the point is.
Opponents of equally-shared parenting face two daunting tasks – overcoming our country’s legal preference for parental involvement in the lives of children and a mass of social science that shows beyond serious doubt that two parents are better than one whether during or after marriage.
The United States Supreme Court has said, for example,
In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. (Troxel v. Granville)
Having established the right, the Court moved on to the wisdom of having done so. It has made it abundantly clear that, absent a showing of unfitness on the part of a parent, that parent acts in the best interests of the child.
there is a presumption that fit parents act in the best interests of their children. (Troxel)
And,
More important, historically it (American law) has recognized that natural bonds of affection lead parents to act in the best interests of their children. (Troxel citing Parham).
So, absent a showing of unfitness, parents are presumed by Supreme Court precedent to act in their children’s best interests.
The validity of that legal presumption is echoed in the scientific literature on children’s outcomes.
Indeed, the system of primary custodian/visitor, so preferred by so many has been shown to marginalize the non-custodial parent in the child’s life. The absence of a parent following divorce “is associated with a wide range of deficits for children,” in the words of Canadian researcher Paul Millar.
Joint custody, by contrast has been shown by various researchers such as Gunnoe and Braver, Bauserman (in a meta-analysis of 33 studies) and Seltzer to promote a host of benefits on children both long and short-term.
The anti-dad crowd are on the wrong side of the law and on the wrong side of the science. Slowly, people are starting to notice.