Study: State’s parents back shared parenting; judges don’t

In North Dakota, a child’s chances of spending meaningful time with each parent following divorce have less to do with his parents than what county they divorce in. For example, there’s a whopping 100% difference in joint custody between Grand Forks and Morton counties. Worse, courts are less than one-fourth as likely to order shared parenting as parents are to agree to it. Those and other worrying facts have come to light in a study of court orders in child custody cases conducted by the organization Leading Women for Shared Parenting.

LW4SP asked the Administrative Office of the Court to provide raw data on child custody orders in North Dakota’s eight largest counties from 2011 to the present. That data paints a disturbing portrait of judges’ orders in child custody arrangements that generally fail the all-important test of promoting children’s interests.

The extreme differences between court orders from county to county exist despite the Peace Garden State being one of the most demographically homogeneous states in the country. The LW4SP study shows that marriage rates and income and educational levels vary little from one county to the next in a state that’s over 92% white.

Parents have a much more favorable take on shared parenting than do judges. As of 2017, over 44% of child custody cases agreed to by the parents are for joint custody. By contrast, only 10.5% of cases decided by a judge order joint custody. Stranger still, the trends are in opposite directions. In 2015, over 16% of court ordered cases were for joint custody and about 34% of parents agreed to joint custody. That divergence began shortly after Measure 6, the 2014 ballot initiative that sought a presumption of shared parenting for the children of divorce.

What happened in the ensuing 2 years? On the parents’ side, it seems that the ballot initiative brought awareness of the many values of shared parenting to a wider audience who then began more equally sharing parenting time.

But why would a ballot initiative influence judges against shared parenting? We’ve long known about the opposition to shared parenting of the State Bar Association of North Dakota (SBAND). Indeed, SBAND apparently violated U.S. Supreme Court precedent and its members’ First Amendment rights by funding opposition to Measure 6. It has since been sued for doing so. Perhaps judges are simply following SBAND’s lead in opposing shared parenting? After all, judges are lawyers too.

Why does SBAND oppose shared parenting? Decades of research demonstrate that children in shared parenting arrangements do significantly better on a broad range of measures than do kids in primary or sole care of one parent. Family judges are supposed to act in children’s best interests, but LW4SP analysis shows them doing the opposite.

Family law sections of state bar associations invariably oppose bills to establish shared parenting primarily because shared parenting stands to reduce the earnings of family lawyers. That’s because, with shared parenting, neither parent “wins” or “loses.” Each enters the divorce arena knowing he/she will emerge with their relationship with their child intact. That means less conflict and therefore less for lawyers to do. And that of course means lower fees.

One way in which SBAND could make amends for its wrongful opposition to shared parenting would be to sponsor training seminars for its judges who hear child custody cases. That continuing education should consist of teaching the science that solidly supports shared parenting arrangements for kids. SBAND has some $2 million in cash and liquid assets on its books. It should use some of that to begin educating judges on the value of shared parenting to children. Doing so would finally bring judges into line with divorcing parents and the science on shared parenting.

But the people of North Dakota needn’t rely on SBAND to improve their children’s post-divorce parenting time. North Dakotans can go to the polls and elect judges who act in children’s best interests by ordering shared parenting when both parents are fit and loving.

Robert Franklin serves on the board of directors for National Parents Organization. He’s also an attorney.


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