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South Dakota Visitation Guidelines

(formerly known as shared parenting guidelines until Judge Max Gors recognized in the House Affairs Committee on HB 1302 - 2002 that these guidelines do not address shared parenting)

Why are the South Dakota Standard Guidelines Parenting Schedule Considered Outdated?  
(the time the child gets with the noncustodial parent if both parents do not agree on equal shared custody)

Marsha B. Freeman (2001) Reconnecting the Family: A Need for Sensible Visitation Schedules for Children of Divorce. Whittier Law Review, Spring. pps 3-4 Excerpts

January 30, 2003

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 trained 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.

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 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 trained 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.  South Dakota's currently allows 93 days. 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:
http://sdsharedparent.tripod.com/using_child_development_research_in_custody_and_access_decisions.htm
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.

 Marsha B. Freeman (2001) Reconnecting the Family: A Need for Sensible Visitation Schedules for Children of Divorce. Whittier Law Review, Spring. pps 3-4 Excerpts

Numerous studies continue to tell of the emotional toll on the children of divorce, a toll that frequently manifests itself in feelings of isolation and alienation from the noncustodial parent. Of consequence, also, is the concomitant lessening of feelings of responsibility in the noncustodial parent toward the child. The results of these unintended but real effects of divorce are frequently seen in the conduct of children: troubles at school, acting out at home, problems with authority, and discipline in general.  In the parents, the withdrawal of responsibility frequently manifests itself in excuses for falling behind or neglecting both child support and visitation.

Some of the main reasons for these unintended effects of divorce stem from the traditional visitation schedules between the child and the noncustodial parent, a schedule that supposedly places emphasis on the child’s physical stability but which, in actuality, erodes the emotional ties with the noncustodial parent, and therefore, the stability of that relationship. In effect, many children feel that the noncustodial parent is divorcing them, not just the other parent, while many noncustodial parents feel as if they are being divorced from their children, simply by virtue of being physically cut off from them much of the time.

In practicality, most negotiated settlement agreements, and indeed most court-ordered custody and visitation arrangements, have traditionally relied on the “default” visitation schedule, whereby the noncustodial parent has custody every other weekend, usually from Friday evening until Sunday evening, and one evening during the week, although even this is sometimes only on the off week. Although devised to encourage stability in that the child is not constantly being shifted from household to household, the fact is that this arrangement fosters the idea of one home, the custodial one, where the child “lives,” and one home, the noncustodial one, where the child “visits”. Under this arrangement, where strictly followed, children and noncustodial parents do not normally see each other much more than every other week. The effect, if not the intent, is to promote isolation from the noncustodial parent, and exacerbate the societal image of the noncustodial parent as an unnecessary, almost intrusive part of the child’s life, with little to no authority.

While the former arrangement (every other weekend, one evening per week) may promote physical stability in the form of less movement of the child, in effect it promotes less stability in the relationship between the child and the noncustodial parent. This is especially so where either or both parents are reluctant to alter the schedule, once set, to allow for additional visitation. Not surprisingly, father’s groups have become more vocal in advocating that both parents are equal in relation to their child and that any custody arrangement should center around the continued involvement of both parents in the children’s lives …The continuation and strengthening of this support should be the focus in fastening custody arrangements. A continuing and even improved relationship with the children is what we should be aiming for, since the breakdown of these relationships is the source of most of the negative effects of divorce on the children involved.

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