November 7th, 2012 by Robert Franklin, Esq.
The voters of Walsh County, North Dakota approved a ballot initiative on Tuesday that would require family courts to give equal rights to fathers and mothers in custody cases as long as neither parent had been found to be unfit. Read about it here (Grand Forks Herald, 11/7/12).
Under Measure 3, divorcing parents would be assumed to have joint legal and physical custody of their children, unless one parent can prove in court that the other parent is unfit.
The measure was spearheaded by Mitch Sanderson of Park River. Earlier this year he headed a petition drive to place the initiative on the ballot. It passed in August and was placed on the ballot. The measure passed yesterday with about 66% of the vote.
Interestingly, the Walsh County initiative appears to track U.S. Supreme Court precedent in its requirement that parents have equal rights unless one is adjudicated unfit. Such, at any rate, are the dicta of Troxel vs. Granville and previous cases. In those cases, the Court strongly suggests that states may neither take away nor infringe the rights of parents absent a showing of unfitness. Of course they do exactly that every day, many times a day, which has always struck me as odd, but the stark contradictions between Supreme Court rulings and the behavior of state family courts, child welfare agencies, adoption courts and the like are there for all to see.
Let’s not overlook the fact that this equal-parenting initiative managed to pass wholly outside the usual legislative process. That is, the people voted for it to be placed on the ballot and the people voted it into law. They didn’t rely on the state legislature to do so. As we’ve seen in states like Minnesota, where it took 13 years for equal parenting legislation to pass only to be vetoed by a know-nothing governor, elected officials are, shall we say, often motivated by factors other than the rightness of a particular cause.
So, congratulations to Mitch Sanderson and his unflagging support for equal parental rights. And congratulations to the voters of Walsh County for enacting fairness and justice in family law.