January 30, 2003
I sincerely want to thank you for your testimony yesterday on Senate Bill 60. Honestly, I was surprised based upon to your past comments on this issue two years ago. This makes me all the more appreciative. What you said yesterday is definitely in line with your thinking back in 1995 when you were the main guest on the "Ask a Lawyer" Public Radio broadcast on Children and Divorce. Thank you.
I also want to say that I applaud your expertise and involvement with the development of the domestic relations laws in South Dakota. You have been a great asset to many parents in South Dakota. In fact, when I get calls from parents across South Dakota who are looking for a family law attorney, you are the first attorney I mention. I regret that you weren't in the Yankton area when I went through the legal process.
I recognize that you listened to the initial Senate Judiciary Committee hearing so I presume you know where we are coming from with this. However, after hearing your testimony and comments on the subsequent amendments, I feel the need to comment is important for mutual agreement or disagreement.
The South Dakota Coalition for Shared Parenting believes that children in South Dakota have the presumptive right to "maximized" shared parenting unless there is a compelling reason not to do so. Honestly, due to the obvious interaction between children and parents, we believe parents do too. As a psychologist, it is difficult for me to see children in isolation without the involvement of their parents. I know the "best interest of the child prevails", however the parent's interest and impact on their children is vitally important as well. In short, we believe the "best interest of the family" is of primary concern.
We are looking for a change in custody laws that presumes both parents are fit and able at the onset of separation. That the starting point for parents and children should be equal overnights as much as practical unless there is a compelling reason not to do so. This law must be for the 95% who are good, fit and loving parents in South Dakota who just want to have more responsibility in the raising of their children. This law must also account for the 5% who do not fall into this category. This is constitutionally sound, fair and IS in the best interest of most children across our state. We also believe that law should end the contentious win/lose situation in South Dakota.
It is pretty clear from the many "stories" I hear from fit, good and loving parents that this "fair" and common sense approach will address their concerns. As I told Deb Bowman (sp?) Tuesday, we don't have the expertise or "political" ability to do this by ourselves. For us, it doesn't matter how this is accomplished but know it in the best interest of our children and my children. This is our primary goal.
It is human nature for people to have a tendency to look at the details and lose sight of the goal. This is what I believe is happening to SB60 and with the amendments...it does not address this goal. I am also concerned, that this water-downed version of SB60 will become law and when we come back next year to add, "maximum time with both parents", they will say "we have already addressed that". I believe it has not been addressed.
It was unfortunate that the full committee was not part of developing the amendments on Tuesday. The primary committee contact member with Senator Kooistra was Senator Schoenbeck. It was clear from the "cat and mouse" game that was played that day that Senator Schoenbeck did not support the most important change to the laws, i.e., "a placement schedule that maximizes the amount of time the child may spend with each parent". Clearly, when Section 6 was taken out, this concept was removed as well... and that is what shared parenting is about. I would like to know what your view of this is?
As you may know, this amendment was based upon Wisconsin's primary change to their Family Law in 2000. I and many others wish to see this in SB60 so that Section 1 will state, "parenting schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households. These guidelines shall provide". This is the exact wording from Wisconsin's law.
Additionally, Wisconsin's analysis of the 2000 change in custody laws defines this statement above in the April 2000 Wisconsin Lawyer State bar update. This analysis from the State Bar can be viewed at:
WI Lawyer April 2000: Wisconsin's Custody, Placement, and Paternity Reform Legislation Part 1:
WI Lawyer April 2000: Wisconsin's Custody, Placement and Paternity Reform Legislation Part 2:
Briefly, the review of "Maximization of placement" is described as:
The most important change to their placement law. This presumes an equal placement schedule for two parents who live in the same neighborhood, or in the same school district. But equal placement would be a practical impossibility in cases of a substantial geographic separation.
Regularly occurring and meaningful placement with each parent also means that courts must avoid the overly simplistic solution of awarding school year placement to one parent and summer placement to the other parent. Instead, the placement with each parent needs to be regular so that the child can maintain and develop a relationship with each parent. The requirement that the placement be meaningful directs the court to set a placement schedule that allows for more time than a few hours each week for dinner. Time is a crucial component in giving both parent and child an opportunity to adjust to placement transitions and fully develop their relationship.
In the more practical form, it is our position that when parents decide to separate, whether mutual or unilateral, the starting point for discussion should be maximized parenting time for the children, basically 50/50 unless there is a compelling or practical reason not to do so. Parents should not have to fight simply to retain their desire and right to fully parent their children after separation or divorce. This is what we are looking for.
Unfortunately, the standard guidelines also play a significant role in not addressing this concern. I know that you have been a vital resource in the development of the current standard guidelines and complement you again on all you have done and I am aware that these were developed prior to 1997 with input from mental health professionals. As you know, up until last year, these guidelines were "guidelines" and not law. Yet we know, these guidelines were the unspoken law since their inception. I believe most of the guidelines are important, well written and necessary. Yet, the parenting schedule in these guidelines do not reflect the current social and developmental research. As a psychologist, I have reviewed numerous studies or references and know that this current area has changed dramatically in the past 5 years. I also know that research 10 years ago is more historical than reflective of our current society.
The parenting schedule in the guidelines remains the "traditional" guidelines. In looking at Version 2 (June, 1997) the schedule was based upon relevant family research in 1988, 1992, 1982, etc. There is even a reference to Texas guidelines which at that time, allowed 150 days for the noncustodial parent for children over three. There is new research and new secondary references which show that the "traditional" guidelines are outdated and not in the best interest of children.
The most recent and best analysis in the area of parenting schedules can be seen in: Kelly, J.B. and Lamb, M.E. (Jul, 2000). Using Child Development Research to Make Appropriate custody and Access Decisions for Young Children. Both authors are "guru's" in Divorce and Children. In fact, Kelly has been a co-author with Judith Wallerstein, a psychoanalyst who has published extensive work in divorce including her new book, The Unexpected Legacy of Divorce: A 25-Year Landmark Study. Kelly and Lamb's review in the Family and Conciliation Courts journal (now known as Family Court Review) can be found at:
Finally, education is the key for our organization. I am an educator. I believe the information I provide is accurate to the best of my ability. Standard guidelines (in particular, the parenting schedule) across the United States are not necessarily similar. In many states where there is a presumption of joint physical and legal custody at the onset of separation, there is no standard parenting schedule. There is no need for one.
In an analysis by Mark D. Matthews, Curing the "every-other-weekend syndrome": Why Visitation Should be Considered Separate and Apart from Custody, William and Mary Journal of Women and the Law, Spring 1999, , Matthews concluded that thirty states have no separate visitation provision and of the twenty states that do, these provisions vary. He also noted that Texas is unique because it has standardized time periods for the visitation (my review of their statute supported a specific, standard parenting schedule of approximately 150 days for the noncustodial parent). I would also encourage you to review, Freeman, M.B., 2001, "Reconnecting the Family: A Need for Sensible Visitation Schedules for Children of Divorce" which reflects the unintended effects of divorce stemming from the traditional visitation schedules between the child and the noncustodial parent.
In keeping with our educational purpose, we have a variety of information that was sent to all legislators prior to the beginning of the session. This information has been provided to the Mental Health agencies, Governor's office and UJS. Most of this information can be obtained off of our website address indicated below or will be in the near future. I would be happy to send you this information as well as the articles referred to above, although the expense for this come out of my personal funds at this time. Please let me know.
Table of Contents
1. Questions & Answers: Rebuttable Presumption of Joint Physical Custody
2. Handouts with Excerpts from other state laws and Summary of Research in support of Shared Parenting
3. “Family Facts: Legislators and Four Governors take the Lead in Promoting Shared Parenting”
4. Wisconsin's Custody, Placement, and Paternity Reform Legislation (2000)
5. “Federal Court Certifies Constitutional Question” -- regarding equal custodial parent status in Ohio
6. “Children in Joint Custody Do as Well as Children in Intact Families”
7. “Legal and Research Support for a Presumption of Joint Physical Custody”
8. “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children” (2000)
9. An Email I recently received which summarizes why we believe SB60 is important to the children and parents of South Dakota
10. The South Dakota Coalition for Shared Parenting brochure
Linda Lea, I realize this E-mail is long and would have preferred to send you a letter. However, in the interest of expediency, understanding of snail-mail and your involvement in SB 60, it is important for me to get this information to you as soon as possible.
I truly hope we are on the "same page" with most of this and that you will help facilitate the addition of "maximized amount of time" to SB 60 similar to Wisconsin's or will advocate that the Standard Guidelines parenting schedule reflect a more balanced approach.
Please call me for any concerns or comments you may have at your convenience.