Testimony in Support of Senate Bill # 60
Senate Judiciary Committee
Good Morning. My name is Steve Mathis and I am the divorced father of my daughter, Age 9 and my son, Age 14. My training and experience includes work as a psychologist, school psychologist, administrator, technical assistance provider and provider of services to families of abuse and neglect. I am the founder and chairman of the South Dakota Coalition for Shared Parenting, a grass roots group of parents, grandparents and other concerned ordinary people in South Dakota who believe children have a need and right to equal responsible shared parenting, equal access and opportunity with both parents following separation or divorce. We believe that the current custodial laws and judicial family law practice in South Dakota are outdated, are not “family friendly”, are gender bias and do not support or encourage the best from all members of a separated or divorced family.
It is my privilege to provide testimony on Senate bill 60 today and I thank you for this opportunity. As you may recall, each of you have received a packet of information from me asking for your support of this bill. It is my hope that you have reviewed most of this information so that you will have a better understanding of what we are trying to accomplish.
Today, you are going to hear from several people who love and care deeply for their children. The message will be loud and clear. That is, the current custody laws needs to be changed to be more “family friendly” and children need both parents to actively share parenting in their lives after separation or divorce. You will also hear some of the hurt and pain that results from our South Dakota custody “system”. I ask that you carefully listen to what is said, from our hearts here today.
You have in front of you a partial solution to the concerns we have.
Our message has not changed. Children of separation divorce and otherwise need both parents to be an active part of their lives. You see, not only does this make sense but it is strongly supported by developmental and social research and it is also supported by other more progressive states including Oklahoma, Minnesota, Alaska, Wisconsin, Texas and Washington DC.
(REFERENCE A-1 & A2)
“The debate about what is in the best interest of a child is over.” It is not about which parent is the better parent. It is not about which home is the best. It is not about one-bed/one house, it is not about conflict free homes. It is not about who makes the most money. It is not about who did what in the family before separation or divorce. It is about a child having two loving parents actively sharing in their lives after divorce or separation.
This was the message in the District of Columbia back in 1995 when they passed their equal shared parenting law and concluded that a “rebuttable presumption” of joint custody (physical and legal) is in the best interests of the child.
Here we are in South Dakota, in the year 2003, 8 years later discussing this issue.
What is the current status of our custody laws?
Currently, our laws are designed, to pick a “winner” and a “loser” and ultimately the child loses. It is a foundation for competition, conflict and hostility. It is based upon the court deciding, “who is the better parent”, instead of recognizing that both parents are good, loving parents and then providing for the maximum access of each parent to their children. Ladies and gentlemen, in South Dakota, most parents are good and fit parents. But our state supports that the “winner” is given custody of the child and the “loser” is referred to as the noncustodial parent and given “visitation” with their child. The “winner” in this state is provided 3/4th of the available time with the children while the “noncustodial” parent is limited to the rest, which is typically 4 overnights per month, hardly enough to maintain a strong, ongoing relationship with a child. These are the standard guidelines of our state. It is a perverse system and when you pick a winner and a loser, you guarantee the child is the loser.
This is the law if both parents don't agree on the parenting schedule. Our law allows for a “hostile veto” and limits a child's access to both parents equally because one parent, the one who says “no” to equal shared parenting will generally become the custodial parent in this state. Can you imagine, the most hostile parent can veto the other parent's equal involvement.
And who is typically the custodial parent in this state? You know it, the Mother. Now I know that most mothers are good and fit and I also know that most fathers are as well.
Clearly, there is a maternal preference for primary custody in South Dakota. It is estimated in 80 - 90 % of the cases, the mother is awarded primary custody. This is common knowledge and an acceptable practice in our State.
In fact, last year through the lobbying efforts of the Acting Supreme Court Judge Max Gors, our State Government passed a bill that said, “Mothers get custody of their children”. Of course it was under the guise of who was the primary caretaker within the past 30 days. Judge Gors clearly stated in testimony in committee that the parent who gets custody is the one who “makes the meals, who washes the clothes, who changes the diapers.”
In this same committee, Representative Matt Michel's response to Judge Gors' statement on who gets custody was very revealing. He stated, “I don't do that and I'm married”. Seriously, in this state, if a good-fit parent such as Representative Michels were to become separated from his wife and they could not agree on the parenting schedule, Rep Michels would be allowed to spend 4 overnights per month with his children simply due to separation or divorce. This is not the South Dakota way.
This state gives credit for cooking the meals, washing the clothes and changing the diapers and denies credit for cutting the grass, developing a child's interest in sports, maintaining the house or car, etc. In any intact family, both parents typically agree upon who will do what, and all responsibilities collectively support the well-being of children. The issue of “who did what” during the marriage is flawed, concludes that one parent is better and ignores the reality that both parents were and continue to be an important part of a child's life. Minnesota recognized this and actually prohibits, by statute the court from using the primary caretaker factor as the sole determinate of custody.
In our South Dakota culture today, the majority of fathers still do not meet this custody test and therefore are denied the opportunity to be a strong part, an equal partner in their children's lives simply because they are fathers and the other parent says no to shared parenting. And more importantly, our children are being denied a fulfilling relationship with their Dads (and in other cases, their mothers).
Our South Dakota culture and government has traditionally sent a message that fathers are not important as parents, only as checkbooks, yet current social and criminal research has revealed that we are all wrong-that the increasing woes we are suffering as a society are due to, of all things, father absence. Biological fathers are, in fact, very important for the healthy development of children. Without fathers, children are much more likely to grow up damaged.
Unfortunately, the amount of contact non-custodial fathers have with their children diminishes over time following separation or divorce and granted, some fathers choose not to be an active part of their children's lives.
There are various reasons for this, however, a father's lack of love and concerns for his children is typically not one of them and is rarely the case. In fact, most fathers agree that being a father is the most fulfilling role a man can have and the biggest fear when divorce occurs in men is typically losing their children.
Studies show that children who grow up without responsible fathers are significantly more likely to experience poverty, perform poorly in school, engage in criminal activity and abuse drugs and alcohol.
President Bush and HHS Secretary Tommy G. Thompson have made promoting involved, committed, responsible fatherhood a national priority include the initiative to encourage more responsible fathering by non-custodial parents, In 2000, while Governor of Wisconsin, Thompson signed Wisconsin's new custody, placement and paternity reform legislation stating, “we need to do more to make sure both parents are fully involved in the raising of their children, particularly fathers. He further stated, “I am confident the provisions I am signing help strike a better balance.” This legislation was passed to “help reduce the custody warfare that is harmful to children by giving parents a clear picture of the law's mandates and expectations - that both loving, involved parents will be treated equally and will be able to play significant roles in their children's lives.”
I am not here to say that Fathers should be granted primary physical custody of their children more than Mothers -- I am here to tell you that Fathers and Mothers should have the opportunity to equally parent their children after separation or divorce. This a fair and common sense starting point. This is a balanced approach.
As a father as well as a trained school psychologist, I know the benefits of having both parents equally involved in a child's life during separation or divorce.
(REFERENCE D-1 & D-2)
Shouldn't we work very hard to preserve for the children, as much access to both parents as we can. Why wouldn't we want to encourage the maximum continued involvement of both parents? When you have fit and loving parents saying, “please give me more time with my child”, shouldn't we throw up our hands and say, “hallelujah, here is a child who is loved, here is a child who has parents who want to be involved, lets see what we can do to maximize the contributions of both? Yet in South Dakota, this is not the case. The purpose of this bill is to say - “relax, you're both still going to be mom and dad. You're both going to have a substantial relationship with your children.
There are people who oppose what we are trying to do and I have addressed many of these concerns in the information I previously gave you. I'm sure there was opposition to the changes in custody laws in the District of Columbia, Wisconsin, Oklahoma, Alaska, Iowa, Minnesota and other states. However, a presumption of substantially equal shared parenting is now the law in these respective states. And most of these changes occurred in the past 2 - 8 years.
Are most women opposed to this? I don't think so. In fact of the 235 signatures we collected in support of this bill, a little over half were women. One might suspect that feminist groups might be opposed to this legislation, however, when the District of Columbia presented their shared parenting bill in 1995, Karen DeCrow, the former President of the National Organization for Women (NOW) submitted a strong statement of support. At that time, the National Center for Women, a feminist organization with a membership of over 128,000 also supported this presumption of shared parenting.
Who would be opposed to this bill? Who would oppose a proactive plan that provides the opportunity for children to have substantially equal access to their fit parents? I ask that you seriously look at their motive. They have a winner - take all mentality that says one parent should own that child - one parent should have the power over that child.
A.M. Keith former chief justice of the Minnesota Supreme Court is a supporter of equal shared parenting and during his years in private practice was a divorce lawyer. He summed it up best referring to last year's equal shared parenting bill in Colorado. “I believe this presumption (in favor of equal shared parenting) will help settle at least 25 to 30 percent of all child custody cases. The attorney's will begin to concentrate on how these two parents will parent their children in two separate homes instead of trying to prove who is the better parent. I rarely had a contested custody case in which both parents weren't good parents and that is why they were contesting custody. I have been involved in over 1,200 divorces. This bill is a step in the right direction.”
Ladies and Gentleman, I am here to bring a message - children need both parents equally, not visitors and Fathers and Mothers must be treated equally unless there are compelling reasons not to.
This bill is for parents across South Dakota who are ordinary people who love their children and are fit and eager to provide for the care of their children. It encourages the best in all of our citizens, mother or father and is in the best interest of most children.
This bill was a result of a review of shared parenting or joint custody statutes in several other states including Oklahoma, Alaska, Wisconsin, Iowa, and Washington DC. It is based upon current research and information available on Shared Parenting. Most of the bill is not a “reinvention of the wheel” but an opportunity to greatly improve on the wheel.
(Discussion of SB 60)
A year and a half ago, I was diagnosed with terminal cancer. Not surprising. I have been through a lot. I have also twice survived death's door in the past 5 years. My children have been through a lot. My children continue to be denied equal access to me, despite the fact that I live five blocks from their mother's home
I tell you this, not for sympathy. By the Grace of God, I am alive and my cancer is stable for a couple reasons. I believe one reason is to continue to be an loving parent to my children and the other reason is to help facilitate a change in our custody laws in South Dakota that are family friendly and encourage and support the equal involvement of both parents in their child's life after separation or divorce so that my children and future generations don't have to go through what I and many others have gone through because of our current custody laws and “the system”. Be it children, parents, grandparents or other affected people, there is a better way - a South Dakota way! I encourage you to send this strong message to our parents, legal and judiciary system by voting in favor of Senate Bill 60. It is a win-win-win situation and it makes our state a better place to live for everyone.
Thank you for your time and diligent consideration of this bill.