HOME Return to House Bill 1144 - South Dakota
February 17, 2001
RE: House Bill 1144
Distinguished Members of the Senate Affairs Committee,
I am writing in regard to Amended House Bill 1144. I have listened to the testimony presented yesterday on this Bill and believe, as you have indicated, that this bill is too important without sufficient information to make a decision. I am unable to come to Pierre to testify due to health problems and other commitments.
I am the coauthor of the original bill and am the proud father of two children of divorce. When I discussed the original bill with my son, prior to the House Affairs Committee hearing, i.e., that this bill would assume that both parents are good parents after separation would allow children of separation or divorce to spend equal time with their father and equal time with their mother. My son's response was, “This is a good bill for kids”. Unfortunately, the original “shared-parenting” bill was modified with this section removed.
Prior to 1998 - the time of separation, I had not given any thought to the custody and visitation laws in South Dakota or across the country. I thought I would always be an important and active part of my children's lives. After the separation, this changed. I read, searched the Internet, talked with many individuals who had gone through divorce, talked with attorneys, etc. The consensus was, if you are a noncustodial parent in South Dakota, you are ultimately guaranteed less than equal access and time with your children, and more importantly, they will have less than equal access and time with you. I was told by numerous professionals, including two attorneys, that my time with my children would reflect the South Dakota Visitation guidelines (every other weekend, alternating holidays and 1 or 2 three-hour visits per week.
My children and I now experience the Custody and Visitation Laws in South Dakota where my role as an active and involved father has been reduced to a peripheral parenting role (a visitor) in my children's lives. This role did not change because I was a poor and uninvolved father. It did not change because of abuse, neglect or domestic violence. It changed because the South Dakota Custody and Visitation Laws are outdated and support several “myths” that have evolved over the past 40 years. These are but a few:
One parent (usually the mother) is the better parent for the child
A father's role in a child's life is to provide financial support
Children of divorce are better off and more secure with one parent in one house
Overnights with fathers need to be limited
Children might be able to spend overnights "without harm" only after reaching 3 years of age
Every other weekend and 1-2 hour visits per week are adequate for a father to maintain his relationship with his children
Breast feeding is vitally important and should be a priority over overnights with the noncustodial parent
Custody and access disputes are high conflict and are inherently harmful to children
The identification of a primary caretaker is of the utmost importance in developing a parenting schedule
The Legal Judicial System has the experience, education and understanding to know what is in the best interest of children.
These “myths” are supported by the fact that 80 - 90% of the custodial parents are mothers, the preference of the law to give custody preference to a parent, the lack of shared parenting laws, the lack of visitation enforcement, the lack of laws that do not provide for or encourage “joint physical custody”, laws that allow a parent to take off with the children without notice to or consent of the other parent (Baron, 1999), and most importantly - Judicial “Shared Parenting” Guidelines (UJS, 1997) which reduce a father or mother's parenting role to a “visitor” status with the typical “visitation” schedule of every other weekend and maybe one three-hour “visit” per week (whether they live in close proximity or not).
Working as a school psychologist in Huron, SD, most of the children I evaluate are from divorced families and reflect emotions and behaviors consistent with the negative effects of divorce and the negative effects of having one parent primarily involved in their lives. These children need help. They need the State of South Dakota to encourage frequent and meaningful parenting by both parents before, during and after divorce. They need laws that encourage and provide incentive for both parents to share in the rights and responsibilities of rearing their children following separation or divorce. Parents need help as well. They need laws which say, both parents are good parents at the onset of separation or divorce and should equally share in the parenting of their children unless there is a compelling justification for limiting access, (proven domestic abuse, abuse, neglect, etc.) Being labeled a noncustodial parent is not justification for limiting access to children. Yet, that is the current status of our laws and practice in the State of South Dakota. It is time for change. The old “myths” are not working, are not supported by research, nor by the changes in our society that have taken place over the past 10 years (e.g., fathers who are becoming increasingly involved and active with their children).
It has been the hope of many noncustodial and intact parents, including myself that the original “shared parenting” bill would be passed to address many of these issues. This is a better way. I believe the current laws do not reflect what our children adequately need to thrive in a divorce. Many parents and children in South Dakota have experienced the Custody and Visitation Laws in South Dakota and are becoming increasingly frustrated with a system that treats noncustodial parents as a secondary, peripheral parent. This is wrong. Children need Both parents. Ask any counselor, mediator, attorney or mental health worker what our current custody and visitation system is costing (emotionally and financial) the constituents of our great State. What is the cost to our children? Why are we seeing more and more family disintegration and problems in our children? IT ISN'T WORKING.
I believe, one piece of the puzzle is for the government of the State of South Dakota to take a serious look at the current Family Law system and make changes that better reflect that BOTH mothers AND fathers play a vital role in the physical, psychological, emotional and spiritual well-being of children before and after separation or divorce. A summer study in this area may be a useful beginning provided custodial and noncustodial parents are included in the discussion.
Thus, House Bill 1144 was developed. The original bill was packaged to address many of the concerns listed above - yet, it was amended to reflect the current sections addressing relocation and record access now before you.
SDCL 25-5-13 as it is permits a parent with custody of the child to move where they wish (in state or out state) without providing notice to the other parent. I hope that you can see the problem with this. Roger M. Baron, Professor of Law at the University of South Dakota and author of “Refining Relocation Laws - The Next Step in Attacking the Problem of Parental Kidnapping,” 25 Texas Tech Law Review 119, 125 - 26 (1993) writes in his book, “Cases and Materials on Family Law for the South Dakota Lawyer”, 4th Ed., January, 1999, “Many states require that the custodial parent secure, prior to moving out of state with the child or children, either consent of the noncustodial parent or an order of court permitting the relocation”. “New York, for example, requires the custodial parent show “exceptional circumstances” which justify the relocation.” “In South Dakota, however, the custodial parent is free to relocate with the child without first obtaining consent of the other parent or of the court.” “South Dakota's relocation statute, SDCL 25-5-13 is one of the most permissive seen among the jurisdictions.”
SDCL 25-5-13 is not in the best interest of the children of South Dakota, especially if the other parent exercises visitation and has a relationship with his children. The intent of Lines 5 through 9 is to say that if the custodial parent wants to move their children away from the other parent, they must provide notice to the other parent so that the other parent has an opportunity to agree to or challenge the move. This is called Due Process. A portion of this section was removed at the House Affairs Committee hearing. That is, if the move was approved, the court would ask for a parenting plan that would allow the noncustodial parent as close to the current visitation schedule as logistically possible. Again, this would have emphasized the importance of having both parents involved in their children's life and recognized the following:
A parent's right to “the companionship, care, custody and management of his or her children” is an interest “far more precious” than any property right. May v Anderson, 345 U.S. 528, 533; 73 S.Ct. 840, 843, (1953).
“a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S.Ct.549; 434 U.S. 246, 255-56, (1978)
The U.S. Supreme Court regards parental rights as fundamental and protected by the First, Fifth, Ninth and Fourteenth Amendments. Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977).
The routine and cavalier deprivation of parental rights takes place in the context of divorce where, during the pendency of litigation, one parent is routinely deprived of significant parental rights without any demonstration that a state interest exists-much less that there is a compelling state interest that cannot be achieved in any less restrictive way. In marked contrast to our current practice, treating parental rights as fundamental rights requires a presumption of joint legal and physical custody upon divorce and during the pendency of divorce litigation. The presumption may be overcome, but only by clear and convincing evidence that such an arrangement is harmful to the children. Doe v. Irwin, 441 F. Supp. 1247 1249 (D. Mich. 1977). From: Hubin, D.C., 1999, Parental Rights and Due Process. The Journal of Law and Family Studies, V 1, N 2, pp. 123-150.
It is not the intent of this section to restrict the custodial parent from moving. It is to make sure there is due process and the best interests of the children are considered prior to any move. In fact, it may be in the best interest of the child that the child remains where he or she is, that there be a change of custody and that the current role of custodial parent changes. The now noncustodial parent is free to move wherever he or she desires.
The following excerpts are from the Missouri Domestic Relations Law, which may assist you in modifying Section 3:
Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights. Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation. The notice of the proposed relocation shall include the following information: (City, Phone, date of intended move, reasons, proposal for revised schedule)
The residence of the child may be relocated sixty days after providing notice, as required by this section, unless a parent files a motion seeking an order to prevent the relocation within thirty days after receipt of such notice. Such motion shall be accompanied by an affidavit setting forth the specific factual basis supporting a prohibition of the relocation. The person seeking relocation shall file a response to the motion within fourteen days, unless extended by the court for good cause, and include a counter-affidavit setting forth the facts in support of the relocation as well as a proposed revised parenting plan for the child.
The party seeking to relocate shall have the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child.
If relocation is permitted: The court shall order contact with the nonrelocating party including custody or visitation and telephone access sufficient to assure that the child has frequent, continuing and meaningful contact with the nonrelocating party unless the child's best interest warrants otherwise; and The court shall specify how the transportation costs will be allocated between the parties and adjust the child support, as appropriate, considering the costs of transportation.
I am by no means an expert in drafting bills. In fact, this is my first attempt. I pray that you will see the need for change in this area and pass a bill that includes Section 3 and repeals 25-5-13. I also ask that you pass a modified Section 1 that reflects its intent. In essence, prior to any contemplated move by the custodial parent where there will be greater distance between the children and noncustodial parent, notice must be provided to the noncustodial parent which will allow the other parent the opportunity for due process if he or she believes it is not in the best interest of the children. This would be a great beginning in promoting the belief that Children Need Both Parents!
I appreciate this opportunity to present my testimony and relevant information on House Bill 1144. I also ask that you consider that over 250 constituents in South Dakota signed a belief that our current family law system should reflect “shared parenting”. This we must do for our children.
Thank you for your time and thoughtful consideration.
Steve Mathis, Father
The South Dakota Coalition for Shared Parenting