North Dakota: State Attorney General Goes to Court Opposing Equal Parenting Law

February 17th, 2013 by Robert Franklin, Esq.
Mitch Sanderson is about as much of a stand-up guy as you’re likely to find anywhere.  He lives in Park River, North Dakota, works as a diesel mechanic and apparently spends all his free time trying to bring good sense, decency and the welfare of children to family law in that state.  It hasn’t been easy.  I’ve written before about Sanderson here.  Read the latest here (Grand Forks Herald, 2/14/13).

Eleven years ago, Sanderson’s wife filed for divorce.  As night follows day, the divorce was granted, she got custody of their two kids and Sanderson was ordered to pay child support.  As is so often the case, Sanderson’s was the standard visitation order; he’s entitled to see his kids four days a month, plus a few extra days on specified holidays.  And, as is also so often the case, his wife doesn’t always comply with even that minimal schedule.

Like a lot of dads, Sanderson wants more and knows his kids need more.  But unlike a lot of dads, he’s not content to go hat in hand to the court to beg for a few more hours or days.  He’s done that plenty of course, but Sanderson doesn’t stop there.  For one thing, he lobbied the state legislature to change custody laws.  That failed as it has in so many other states.

Sanderson was undeterred.  He got up a petition for a ballot initiative that called for the law to be changed so that each parent gets equal parenting time as long as neither is adjudicated unfit.  The intitiative received only 44% of the vote, so it too failed.

So Sanderson set his sights a little lower.  He got enough people to sign a petition for a county-wide ballot initiative that was the same as the previous state-wide one.  And, lo and behold, it passed in a landslide!  Walsh County residents voted 66% to 34% in favor of equally shared parenting by fit parents.  In due course, county commissioners voted 4 – 1 to add it to the county ordinances.  In Walsh County, North Dakota, equally shared parenting had become law, thanks to the tireless work of Mitch Sanderson.

But the powers that be in the state capital, Bismarck, have decided that they know better about how the people of Walsh County ought to govern themselves than the people of Walsh County do.

North Dakota’s attorney general filed court documents this week in Grafton challenging the new and unusual “equal parenting” initiative passed by Walsh County voters in November and approved by the County Commission in December under its home-rule charter.

To no one’s surprise, once the laws of Walsh County changed to require equal parenting, Mitch Sanderson went to court and asked the judge for such an order.  My guess is he was the first there on Monday morning after the initiative became law.  But, in an unprecedented move, the State of North Dakota, by and through its attorney general, intervened in Sanderson’s custody case and filed a motion opposing Sanderson’s request for equal parenting.  Mind you, Sanderson’s wife has done no such thing.

The State of North Dakota is claiming that Walsh County doesn’t have the authority to establish a law about child custody that’s different from state law.  Walsh County is what’s called a “home rule” political entity.  That means that it’s more than a simple political subdivision of the state with powers only derived from those of the state.  It has its own powers derived from its own home-rule charter as originally issued by the state.  Still, there are things home rule cities and counties can’t do that conflict with state laws, and that’s what Attorney General Wayne Stenehjem says Mitch Sanderson and Walsh County have done.

Needless to say, I’m not familiar with the intricacies of the Walsh County charter or home rule law in North Dakota, so I can’t guess where this one will end up.  Sanderson, for his part, is fighting this fight without a lawyer.

Sanderson said he can’t afford an attorney but relies on the help of friends with legal knowledge in filing court documents.

He said state law on home rule charters does allow cities and counties with such charters to “supersede state laws,” except in certain cases involving taxation and budgeting.

The general rule, Sanderson says, is “you can’t do less than a state law, but you can do more.”

He cites local speeding regulations — local governments can make them lower that state laws — and no-smoking ordinances — local governments can make them more onerous — as examples of city governments “superseding” state laws.

That has the ring of truth to me.  After all, why should the state care if one of its counties wants to have equal parenting after divorce?  What state law or policy does that contradict?  Is it truly the policy of the State of North Dakota that no child have equal time with each parent?  Yes, the state has a standard visitation order, but judges are free to order something different, so why isn’t Walsh County free to do the same?  After all, the new law only applies if neither parent is found to be unfit.  Whatever the case, we’ll soon find out what happens.

In the mean time, Sanderson is fighting this fight alone.  The state isn’t just fighting against Mitch Sanderson, it’s fighting against the authority of Walsh County.  The attorney general isn’t saying Mitch Sanderson is a good dad or a bad one; he’s saying the county doesn’t have the authority to pass the law it passed according to the dictates of the people.  The state’s attack is on the county and only incidentally against Sanderson.  Therefore, it’s the county attorney who should respond to the state’s motion.  If that’s happened, the linked-to article doesn’t mention it.  Sanderson should demand that Walsh County intervene.

But all that is beside one very large point – the doggedness with which fathers’ and children’s rights are resisted by those with political power.  Time and again, office holders (including judges of course) prove themselves immune to the urgings of decades of social science, the pressure of fathers’ rights organizations and the dictates of their own conscience.  Just last year, a shared parenting bill finally passed both houses of the Minnesota legislature.  That was an event that took 13 years to occur.  So what did the governor do?  He vetoed the bill for the most spurious of reasons.

Now we have another democratically enacted law, one that has the overwhelming support of the people of Walsh County.  And, just like in Minnesota, we have one man who’s decided the will of the people can’t stand.  So he’s asked another single individual – the judge in Mitch Sanderson’s custody case – to invalidate it.  The sheer arrogance is astonishing, but the frankly anti-democratic spirit of the move is more so.

[Sanderson]’s seeking to be allowed to have his children in his home half the time, per the county ordinance, he said.

Stenehjem simply “wants to protect their corrupt family law system,” Sanderson said. “They should leave the vote of the people alone. The people have spoken.”

Leave a Reply

Your email address will not be published. Required fields are marked *