Potential ballot measure?
Shared parenting advocates await Legislature’s next move
Another initiated measure may be on the horizon if North Dakota legislators fail to address the issue of child custody to the satisfaction of advocates for shared parenting.
The House and Senate are ironing out their differences regarding the shared parenting bill, House Bill 1392, in conference committee. Arnold Fleck, a Bismarck family law attorney and shared-parenting advocate, is concerned a presumption that shared parenting should be the model will be lost in the process.
“I am getting geared up to do another initiated measure,” he said. “If we can’t get it through the Legislature, we will get it through a public vote.”
Fleck said he can’t speak for all proponents because there’s no formally organized group. The group had been more organized a few years ago when they were promoting a 2014 initiated measure, which failed with less than 40 percent of the vote.
Despite the previous loss at the ballot box, Fleck said he believes public sentiment is shifting as research increasingly shows that children benefit from the involvement of both parents in their lives.
Fleck was among supporters of the original eight-page bill introduced in the House this session. The House amended the bill to a two-page document that defined equal parenting time and residential responsibility as something as close to 50 percent shared time as possible but not less than 35 percent. The Senate basically went along with that. Both bills also call for an interim study.
However, the House bill stated there is a rebuttable presumption that equal parenting time and residential responsibility promotes the best interests and welfare of the child. If the court declines to enter an order awarding equal parenting time and residential responsibility, the court should give a rationale for the denial of equal parenting time and residential responsibility.
Senators changed the language to state a parent interested in shared parenting must request it during any initial court proceeding. If the request is made, the court must explain its rationale for awarding or denying it. When the House refused to concur, the bill ended up in conference committee.
Minot legislators are divided on which version of the bill they support.
“I supported the bill when it was voted on in the House,” Dan Ruby said. “The problem I see with the Senate version is that it only applies to initial proceedings which, as I read it, would not apply to all existing situations where the shared parenting was not part of the initial proceedings. This change would not help the countless people who are asking for equality when it comes to having time with their children. I’m happy the House did not concur. Hopefully the conference committee will find a solution to the different versions.”
“I like the Senate version more,” Rep. Matt Ruby said. “I think that it cleans up the language and gives some wiggle room with what percentage of time each parent is given if shared parenting is awarded. It is a tough situation either way because the court has to prove both parents are able parents, and too often those proceedings turn ugly. The other part of the Senate version that I would like to bring attention to is that this is only considered if shared parenting is requested. When it comes down to it, ND Courts usually rule in favor of the mother, and I believe this gives dads a fighting chance to be more involved.”
Sen. David Hogue, an attorney, also provided an argument for the Senate version.
“I believe that district judges have adequate guidance under the current law to consider how best to divide parenting time among two parents who cannot otherwise agree on the division of parenting time. I accept the change to the law in the Senate amendment that would require the district court judge to articulate why the judge is not going to establish equal parenting time,” Hogue said.
“It’s my experience that when the parents cannot agree, they present an abundance of evidence on who is best suited to provide parenting time and primary custody to the child. The evidentiary presumption contained in the original HB 1392 does not help the parties or the court reach a just decision. It would simply tell the judge that equal parenting time is the default rule and to articulate why equal parenting time should not apply. If I thought judges were being cavalier in the way parenting time is divided, or that there was a scarcity of evidence about how best to divide parenting time, I would support the original version of HB 1392,” he said. “I think the better approach is to let the evidence speak for itself, e.g., who is providing the love, care, and affection for the child? Who has the capacity? It’s a difficult decision, but I don’t think we need an evidentiary presumption when there is ample evidence of what is best for the child.”
Sen. Oley Larsen, who voted for the Senate version, said taking out the presumptive shared parenting language basically neutered the bill, but he added 50-50 shared parenting may not be workable.
The North Dakota State Bar Association has opposed presumptive shared parenting, which was in the House bill, but is not commenting publicly on the Senate version or getting involved as an organization in the conference debate.
“If they can work something out that’s better for families and kids and then for parents, that’s great,” said Tony Weiler, executive director for the bar association.
According to the National Parents Organization, a nonprofit that supports family court reform, 24 states are considering or recently passed bills that embrace parental equality if both parents are fit and there has been no domestic violence.
Matt Hale, chairman of the Kentucky affiliate of the National Parents Organization, said shared parenting is not a single, clearly defined concept. States that have adopted legislation have differed in how they apply shared parenting. Recent states to pass legislation include Missouri, which doesn’t require 50/50 sharing but encourages involvement by both parents, and Kentucky, where the governor recently signed a bill establishing a presumption of shared parenting and 50/50 custody in temporary custody cases where there is little likelihood of abuse and neglect.
Nationally, there’s been more movement toward shared parenting in the past five years than there has been in the previous 20, Hale said. Most of those strides are occurring legislatively rather than at the ballot box, he said.
“Part of the effort to implement shared parenting nationally is a cultural change. Every time there’s a step in that direction, it’s a good step. Any step in the right direction helps with the culture,” he said. “Shared parenting in North Dakota is only a matter of time, and this step – whether the House version or the Senate version – is part of the path.”