Custody Data Show Anti-Shared Parenting Bias Among North Dakota’s Judges

November 8, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Leading Women for Shared Parenting has done it again. Back in August, I posted a piece on research the organization had done into custody outcomes in North Dakota from January 1, 2011 to September 11, 2017. That revealed some astonishing things. For example, in a state that’s among the most demographically homogeneous in the nation, whether a father gets primary or shared custody of his children post-divorce apparently depends not on his qualifications, but upon which county the case is heard in.

As I said then,

Between, for example, Grand Forks and Morton Counties, there’s a whopping 100% differential in rates of shared parenting (28% and 56% respectively).

And,

On the contrary, it looks like kids chances of keeping real contact with both parents seems to be a function of individual judges’ proclivities toward shared parenting. Some like it, but a lot of them don’t.

Which brings me to the latest data from LW4SP that do in fact break down custody awards by individual judges – all judges in the state. And once again, the results are astonishing. Lawyers talk about shopping for the right judge and it turns out they know what they’re talking about. In North Dakota, the type of custody awarded is far more a function of what judge the case appears before than anything else.

So, in cases decided by the judge, i.e. not stipulated to by the parents, five judges (out of 37 in all) ordered shared parenting in not a single case. Sixteen judges did so in fewer than 10% of their cases. Remember that this is over a period of more than 6 ½ years. By contrast, one judge, Zane Anderson, ordered shared parenting in one-third of his cases.

Family court judges claim to be acting in the best interests of the child in every case involving child custody, parenting time, child support, etc. So how likely is it that, in five courtrooms over the course of 6 ½ years, shared parenting was never in a child’s interests, but in another it was in the child’s interests in one case out of three?

What the LW4SP data strongly suggest is that custody and parenting time orders are far more a function of the predilections of individual judges than any rigorous and unbiased understanding of the best interests of the child. Unsurprisingly, that very conclusion was drawn by several studies of judicial bias in family courts. Put simply, many, many family court judges exhibit a pro-mother/anti-father bias. And it shows in the orders they issue.

And, just in case we didn’t get the point, LW4SP includes a pithy quotation from North Dakota family lawyer Jackie Stebbins. Back in 2014, there was a measure on the ballot in North Dakota promoting shared parenting in child custody cases. Illegally, the state bar association paid some $70,000 to a false-front organization to stop it. Later, emails among various members of the family law section were obtained. Among those emails was Stebbins’ remark quoted by LW4SP.

“Gender issues are alive and well and young moms can do pretty well at shutting dads out”

It’s amazing how honest some people can be when they’re off their guard.

But that’s not all. Last time I pointed out that there appeared to be considerable disagreement between parents in family courts and the judges there. And sure enough, LW4SP’s figures bear out exactly that.

When judges decided custody, 59.5% of the time they gave primary custody to mothers, 17.9% of the time to fathers and just 15.8% of the time they ordered shared parenting. But when parents agree to their post-divorce parenting arrangement, things are very different. Then, Mom gets primary custody 48.9% of the time, Dad 8.4% and in 36.7% of cases they agree to share parenting time.

The significantly greater incidence of fathers receiving primary custody in judge-decided cases fits with what we’ve learned from several other sources, i.e. that, when fathers fight for custody, they tend to do so only in cases in which they have a reasonable expectation of winning. In the U.K., that was because the mother had such a serious mental health or drug addiction problem that the child protective agency all but ordered Dad to seek custody. My guess is that something similar was at work in North Dakota.

That’s further underscored by the LW4SP data showing the district with the highest rate of shared parenting orders having the highest number of court-decided cases and the district with the lowest rate having the lowest number. Parents seem to know who’s most likely to order shared parenting and demand the judge decide the case in districts most likely to do so.

Then there’s the State Bar Association of North Dakota about which I’ll say more tomorrow.

 

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