South Dakota: Equal Parenting Issue ‘Isn’t Going Away’

March 24th, 2013 by Robert Franklin, Esq.
Once again this year the forces for equal parenting in South Dakota tried to get a bill passed enacting that into law.  And once again the bill failed.  The South Dakota Legislature, like those elsewhere just can’t seem to grasp the basic, simple fact that equal parenting is in everyone’s interest, kids, fathers, mothers and society generally.  Enacting equal parenting legislation would hugely benefit the state and save everyone a lot of heartache and money too.

But, despite the willful ignorance of elected officials, those who are determined to see that legislation passed, remain undeterred.  They’ll be back next session, and the session after that if need be until their representatives see sense.

And speaking of sense, this op-ed is about as sensible and straightforward as any I’ve read (The Daily Republic, 3/21/13).  It’s an accurate statement of facts, a clarion call to support equal parenting, a cogent condemnation of existing law and a spot-on identification of who the culprits are who year after year have their way with the legislature at everyone’s expense.  Here’s guest columnist Casey Wilson.

I want to thank The Daily Republic and its staff this past legislative session for covering a very tough subject: kids’ right to as much time as possible with both parents in a divorce (i.e., shared parenting) in South Dakota.

While the bill failed again this year, we hope for continued support, because this issue isn’t going away. Our current standard placement model is keeping great parents and extended family out of our kids’ lives, and the laws are out of date and creating more problems than they solve.

What could be simpler and more accurate?  Just because the bill failed doesn’t mean the issue is going away.  It’s not.  That’s because it’s far too important to vanish into thin air and too many people know it.  So they’ll be back come next legislative session.  And back again, and back again if necessary.  Every session the legislature will look at the issue of equal parenting until it passes.  Count on it.

South Dakota’s treatment of its non-custodial parents and their children is about as bad as it gets in the United States.

Under current South Dakota Codified Law 25-4a-11, it says that in initial divorce filings the parent who was majority caregiver shall be named custodial parent, and the other parent shall be named noncustodial parent and given parenting time established in the South Dakota visitation guidelines. Unfortunately, these guidelines advocate for four days per month parenting time for the child with the noncustodial parent.

How could anyone design a worse system for caring for children when their parents have split up.  “Yes little Andy or Jenny, the legislature understands that you love your father, rely on him for protection, guidance, love and caring, but that’s just too bad.  Your mother is divorcing him and that means you are too.  Have a nice life.”  That’s the message the state’s elected officials are sending.  Sound sensible?  Sound caring?

In the first place, where did anyone get the idea that the parent who does the most childcare pre-divorce should get to do essentially all of it thereafter?  Don’t they realize that children identify their parents and bond with them within the first weeks of life?  Don’t’ they know that children don’t care if Mom does 65% of the hands-on parenting while Dad does 35%?  Children bond with both parents and suffer terribly at the loss of either.  Does it occur to the legislature that enacting a law that ensures that loss, that heartache and the many deficits children of divorce suffer because of it is bad public policy?

And where did anyone come up with the idea that Dad’s contribution to parenting is irrelevant to the child or its well-being.  It’s true that Dad usually changes fewer diapers than does Mom.  He prepares fewer meals, takes the child to the park less often, bathes the child less, etc.  Generally speaking, those things are true.  But here’s what else is generally true: it’s Dad who puts the roof over the heads of mother and child.  She prepares the food, but his income buys it.  When the child is sick, she takes it to the doctor whom Dad’s salary pays.  Mother and child are warm in the winter and cool in the summer because of Dad’s income.  Of course I could go on and on, but the point is that Dad’s way of caring for the child is every bit as important as is the mother’s.  So why is he tossed aside in divorce like yesterday’s garbage?

Whatever the answer, it has nothing to do with little Andy or Jenny’s welfare.  Indeed, the guidelines that provide for the child to see its father four days out of 30 is so contrary to a child’s well-being that it’s been shown by countless social scientists to be deeply harmful and that harm can last long into adulthood.

So why would a legislature be so blind, so willfully injurious to the state’s children?  Casey Wilson hits the nail on the head.

Only five spoke out this year against the Kids Need Both Parents bill in committee: three attorneys, the State Bar and a domestic violence group. All of them stand to financially lose if parents are granted more equal time with their children in a divorce. The scare tactics of how terrible it would be to presume it is in a child’s best interest to have as much time as possible with both parents were atrocious, and at best were decades-old arguments that, across the nation, state by state, others are realizing couldn’t be further from the truth.

Rapid City attorney Linda Lea Viken, a member of the State Bar’s Family Law Commitee, was among those to testify against a rebuttable presumption of involving both parents equally at a time of divorce and said “the system works fine as it is.” Viken, in one custody case alone, billed more than $370,000 (Schieffer v. Schieffer) just this past year.

Why would someone who can make quite a living off conflict in a custody case thanks to our current adversarial system want anything to change? Very few parents who want equal and meaningful contact with their kids can afford $370,000.

What’s left to say?  Divorce lawyers thrive on parental conflict.  In fact, if it happens to be in short supply at the outset of the divorce, they’re happy to create some.  I’ve seen it with my own eyes.  Convincing one parent that the other is not the loving parent of little Andy or Jenny, but something closer to the Devil Incarnate is a tried and true method of running up the legal fees.  The more animosity, the more motions there are to file, hearings to attend, assessments to order.  And with each of those, the meter goes right on ticking.  Four, five, six bucks a minute or more.

Of course lawyers couldn’t do that alone, but fortunately for them, they’ve got backup in the form of the legislature and the laws it passes.  After all, when one parent stands to “win” sole custody of the child and the other stands to lose almost all contact with the child, who wouldn’t fight like a cornered dog to be the “winning” side.  Considerable amounts of social science demonstrate exactly that.  Shared parenting tends to ameliorate conflict over time while sole or primary custody does the opposite.  No wonder divorce lawyers like sole custody; no wonder they invariably oppose equal parenting.  Hey, it’s just like Linda Lea Viken said “the system works fine as it is.”  For her and her compadres in the family law bar, in their $1,500 suits and alligator shoes, it works like a charm.  For parents and children, not so much.

And let’s be clear.  Custodial mothers who go from doing most of the childcare to doing almost all of it, sole custody isn’t exactly a bed of roses.  All that extra parenting gets dumped on mothers at exactly the time when post-divorce financial realities mean she’s got to spend more time at work than ever before.  The result is a mother who’s got too little energy to be the type of quality parent she was before.

Of course Dad could pick up the slack and passionately wants to, but the South Dakota Legislature decrees that he may not.  Sure that’s likely to plunge him into a depression that makes him a worse parent, more likely to be out of work and more likely to take his own life.  But why would elected officials notice that?

Kids suffer, dads suffer, moms suffer.  But what is that compared to the earnings of a few lawyers?  Those are South Dakota’s priorities.  Really.

But they’re not the priorities of South Dakotans who know that equal parenting is best for all.  That’s why they’ll be back next year, and the year after and the year after.  They’re not going away.

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