February 12, 2014 by Robert Franklin, Esq.
South Dakota Senate Bill 74 passed the state Senate unanimously last week. It now goes to the House and, if it passes there, to Governor Dennis Daugaard to be signed into law. This article says the prospects for passage look good (KDLT, 2/9/14).
SB 74 encourages shared parenting in divorce or separation cases in which children are involved. It doesn’t mandate shared parenting and it doesn’t require judges to presume that it’s in the children’s best interests. But many aspects of the bill make it clear that no fit parent is to be removed from a child’s life by the order of a court. The bill is at best a half-measure, but it is better than nothing. If it becomes law, children in the state stand to gain a more active and vital relationship with their fathers post-divorce. Fathers stand to maintain the relationships they had with their kids before their marriages broke up. And mothers will be relieved of the 24/7 requirement of being their children’s sole parent.
Here’s what I wrote about SB 74 back in January:
As is true in most states, the bill sets out several considerations about the parents the judge is required to weigh in deciding custody. One of those is “whether the psychological and emotional needs and the development of the child will suffer due to active contact with, and attention from, both parents…” In other words, the bill would force judges to examine what actually happens when fathers are cut out of their children’s lives.
Likewise, the bill would require judges to consider “whether one parent has denied, without just cause, the child the opportunity for continuing contact with the other parent.” So mothers who interfere with fathers’ access to their children run the risk of losing custody.
“Whether each parent can support the other parent’s relationship with the child,” is another consideration judges will be required to make. Again, parents who don’t encourage the child’s relationship with the other parent will be at risk of losing custody or having the custody arrangement altered by the court.
Importantly, parental alienation of children would become a factor judges have to consider in deciding custody. “Whether a parent has intentionally alienated or interfered with the other parent’s relationship with the child,” is vital to fathers’ ability to maintain relationships with their children. Dr. Nielsen’s analysis shows that mothers are more inclined to engage in alienating behavior than are fathers, so fathers would stand to benefit from a change in the law that explicitly recognizes PA and requires judges to consider evidence of it in custody cases.
Also important for fathers is this required consideration: “Whether a parent has attempted to influence a custody determination by alleging, falsely or without good cause, that the child or the sibling of the child has been subjected to physical or sexual abuse or abuse and neglect…” Again, false allegations of physical and/or sexual abuse are commonly made in child custody proceedings. Social science shows that the great majority of those falsely claiming abuse are mothers. Therefore, fathers have a chance to benefit from that clause of SB 74.
None of this is a panacea. SB 74, even if passed as is, wouldn’t produce a brand new world of shared parenting in South Dakota. At best it would constitute, as Wilson said, “incremental change.” That’s not good enough and the fight for equal rights in family courts will continue.
As in all states, the acid test will come, not in the legislature, but in the courts hearing child custody cases. In case after case (most recently, that of Dr. Francis Joseph in Wyoming) we see laws that set out factors judges are required to consider in deciding child custody, and in case after case we see judges ignore those factors in order to give sole or primary custody to mothers.
In Dr. Joseph’s case, one of the factors the legislature requires judges to consider is whether each parent supports the child’s relationship with the other parent. As the evidence at the trial made clear – evidence that was unopposed by the mother – the child’s mother did everything in her power from before the child was born to make sure Joseph had no relationship with his daughter. In short, she violated the explicit terms of the law the judge was required to consider in rendering his decision. Into the bargain, no one in the trial claimed that Joseph was anything but a fit and loving father, and the judge explicitly found him to be so. Irrespective of all that, the judge gave primary custody to the mother, rendering Joseph little more than a source of funds for her.
The same occurs in countless cases and the lesson to be learned is that we can pass all the laws we want, but if family court judges are biased against fathers and in favor of mothers, little will change for the children of divorce who see their fathers all but vanish from their lives. Much social science shows the terrible damage this does to children and fathers, but day after day, year after year, the practice continues. And every order removing a father from child’s life is accompanied by the hymn whose words we know so well, “In the Best Interests of the Child.”
So what we’ll want to know is just how this new law (if SB 74 is enacted) actually affects custody decisions in South Dakota. To that end I encourage the state to do what Nebraska recently did – survey the decisions of a representative sample of child custody cases to find out what actually happens. I’d give it two years after passage. Then study what happened before the new law and afterward.
In the meantime, we’ll hope for better out of those judges than is probably wise. We recently saw an excellent review of the social science literature by Dr. Linda Nielsen. Family court judges and lawyers alike agreed that fathers aren’t treated fairly in child custody proceedings, but astonishingly, those judges all but promised to continue that very unfairness. One study of judges’ attitudes found large majorities of the respondents holding the opinion that mothers are “naturally” better parents than fathers.
So it’s no surprise that, when researchers Margaret Brinig and Douglas Allen analyzed Oregon’s legislative effort to reduce the number of sole custody orders, they found that the new law had essentially no effect. The legislature intended more cases of shared custody to result from the new law, but the state’s judges had other ideas.
The point is that we’ll never fix the terrible problems of family courts simply by legislation, although that’s clearly necessary. In addition, judges need to be taught the social science on what actually contributes to child well-being. They need to learn that wrenching a parent from a child’s life is essentially per se bad for the child. They need to understand that children bond with both parents at the earliest stages of their development. They bond with no one else in the same way. For a child to have a father in its life for years only to have a judge shove him aside damages that child for years to come, sometimes for life. At this late date, ignorance of what contributes to child well-being can no longer be tolerated. Judges need to learn the facts and act accordingly. When they do, laws like SB 74 will be more than sufficient to maintain the bonds between fathers and children post-divorce. Until they do, no law on earth will substantially alter child custody outcomes.
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