Advocates, opposition unhappy with shared parenting amendments
Advocates for the shared parenting bill feel the Senate gutted the legislation this week, while the opposing parties are not entirely satisfied either.
On Wednesday, the Senate passed an amended version of House Bill 1392, relating to shared parenting time and responsibility, 28-19 after it received a do-pass recommendation from the Senate judiciary committee the day before.
Shared parenting, by definition, means that both parents have the child in their care "for a time that is as close to fifty percent of the time as can be arranged based on the circumstances but which is not less than thirty-five percent of the time," according to the amended bill's text.
The chairman of that committee, Sen. Kelly Armstrong, R-District 36, wrote the amendment, which added the definition of shared parenting to the code but removed the presumption that shared parenting would be the first step when parents took their custody case to court.
The House passed a version of the bill with the presumption by a vote of 71-21 in February.
"The Senate committee wasn't comfortable essentially as it was written," Armstrong said. "It created a presumption that shared parenting was the appropriate means for custody all the time, and it also essentially made every custody case that's ever been determined and would in the future be subject to that regardless of what the original custody arrangement said. I think the committee had a problem with the presumption in the bill."
He pointed out that in all other areas of the law, the courts amend the previous judgement made on the case rather than starting from scratch. The Senate's amendments would require the judge to articulate why he or she decided to accept or deny a parent's request for shared parenting, Armstrong said.
But advocates for the bill say the Senate's amended version will do next to nothing.
"It was really disheartening," said Sean Kasson, a parent and advocate for the legislation from Fargo. "It includes the definitions, but definitions don't do anything to help the kids and families from North Dakota."
In current law, a judge reviews 13 different factors related to the best interest of the children, something that the bill's proponents say pits the parents against one another to prove they are the better parent as the court moves through each factor. They believe that if shared parenting was the initial option, this might keep parents from battling out for a large majority of custody rights, which in the end may be better for the child.
Sociological researchers say the majority of shared custody arrangements should result in shared parenting, Kasson said, adding that having the presumption of shared parenting may help allow this to happen.
"What social scientists tell us is that shared parenting should be in the vast majority, we're talking 90-plus percent of the cases, and we're not even close to that," said Arnold Fleck, an advocate for the bill and self-employed attorney out of Bismarck. "And so I think the legislators are being led to believe by the lawyers that it's working already. It's working to a small degree, but it should be the decree in the vast majority of cases because the exceptions are very rare."
Jason McLean, the chair of the Family Law Section of the North Dakota Bar Association, testified against the bill. He noted that the presumption could create a situation where a parent who did not wish to have equal custody for legitimate reasons would be put in a position to defend themselves against the other parent. He said the current laws create an equal playing field for both parents, something this presumption would disrupt.
"I'd like to tell you that I'm happy with what came out of the Senate," McLean said. "I think it's better than what came out of the House, and I think it is a step in the direction of trying to resolve some of the problems that have occurred in some of the discussions in this very emotional policy discussion, but I am not quite sure that the language that came out of the Senate is going to create an atmosphere that isn't a little bit more confusing for the courts and parents versus what I had suggested."
McLean said the state's courts do their best to do what's in the best interest of the child, even if that may be difficult for parents to hear. The courts may have considered other factors such as distance between the parents and any internal problems such as addiction.
But the bill's advocates counter that the presumption comes with stipulations that if the judge finds that there are reasons — including distance, neglect, abandonment or abuse — that they can deny shared parenting.
"It's just a nasty game of politics, and apparently money and political careers are put above the needs of our children," Fleck said. "That's the way I'm seeing it. It's just really sad, really sad. But the good news is, from what we're hearing, the public is becoming more and more on our side, so we'll just take it to the public again. The Legislature just keeps failing us in a big way here."
Additionally, Terry Brennan, the co-founder of Leading Women for Shared Parenting, an international organization, has issued multiple Freedom of Information Act requests this session against the state's bar association for any correspondence relating to this legislation, Fleck said. The state bar originally declared a neutral stance on the bill before opposing it, he said.
Armstrong noted that he believed shared parenting is the best arrangement, so long as the families can make it work. Ultimately, all cases are unique, which is why judges are elected to make those decisions, he said.
"I don't think the proponents of the bill are overly excited about the changes," Armstrong said. "I'm not entirely sure the lawyers that practice this are overly excited that anything came through, so maybe we got somewhere in the middle that was a good little piece of legislation."