January 30, 2003
I only got to point number 1 before realizing that the record needs to be
set straight. The Court has ruled that "best interests" of the child is not
an appropriate standard for determining such things as grandparental
visitation (where we are trumping the rights of parents, so some showing
higher than what's good for the child needs be shown), or removing children
from their natural parents or applying ICWA, where a higher standard is
necessary, but "best interests of the child" is still the standard for
determining custody and visitation as between natural parents in a divorce
case, here and most everywhere else.
And please, just so your bias doesn't show quite so clearly, let's call them
"custodial parent" and "non-custodial parent" because that's what they are,
and every divorce lawyer in this state has a lot of cases of fathers
receiving custody, even if that hasn't been your observation.
I've had the chance, over the last couple of days, to see the original bill
and the amendments. I don't see anything that improves on the current law
enough to warrant passage.
My feelings are that, in section 1, there has been no meaningful change from
what is mandated now - a schedule, promulgated by the Supreme Court, that
allows for contact between the child and both parents. Does anyone
seriously think the Supreme Court is going to find that their current South
Dakota Visitation Guidelines DON'T allow for meaningful contact? That they
were wrong to adopt them? I don't think so, so what's the point of the
Section 2, you took out the only good thing that was in there. The parent
who has had custody the previous 30 days should continue to have primary
custody - otherwise, you get into a "child grab" situation during a time
when there is no guidance from the Court until you can get into Court, and
the addition of that "instant recognition of pre-existing custody" was the
real jewel of the rules that went into effect last July, and avoided
countless custody fights.
Section 4 does not account for those myriad situations when the parties
stipulate to a visitation/custody arrangement outside of the South Dakota
Guidelines, as it mandates that any variation from the guidelines be
established by the Court on the record, even if they adopt the stipulation
of the parties. How is that supposed to happen? Do we have to have a live
hearing on every divorce case with kids now?
Section 5 is flawed in that the provisions for providing notice are
unworkable for the average parent. If a parent wants to give less than 60
days' notice of an intent to relocate from Harrisburg to Canton, because of
a residence change, occasioned by a job layoff, they are supposed to get
emergency permission/forgiveness from the Court to give less than 60 days'
notice? No one is going to do that, so every person who has to move is
going to be in contempt of Court, which is not the idea here. Further, no
one who provides notice according to the statute is going to know enough to
enclose a new proposed visitation schedule, so they'll again be in contempt,
even if the parents have talked and worked it out (as is the case in 99% of
And look at application of the "objection" portion of that section - if
parent A files notice of intent to move to take a new job, but parent B
files an objection within 30 days, parent A can't move and take the new job
until there's a hearing? Did you notice that you didn't mandate any amount
of time the Court has to set a hearing? The custodial parent is supposed to
wait 3 months before a hearing can be held to see if they can move? Any of
the proponents of this law tried to find an apartment lately? Anywhere in a
city of any size? Any of you tried to get a half-day hearing in front of a
family law judge in a big county? You just can't do this. It is honestly
designed to allow a non-custodial parent to force a custodial parent to
continue to live where the non-custodial wants, or choose between children
and career, and that's just not right.
I understand the objections; certainly, I do. For every 1 case of a
custodial parent relocating and thwarting contact with a truly concerned and
active non-custodial parent under the current law, there will be 5 cases of
abuse by non-custodial parents under this law.
And the final portion of that says that if relocation is permitted, the
court "shall" order a new set of guidelines, including telephone, etc. This
seems difficult to me - in the situation where parent A moves, provides
notice, and parent B doesn't object, how is the Court going to get involved?
Is parent A required to bring an action and get a new visitation agreement
in place? Parent B? There is no provision for this.
I'm sorry people don't like the current law. I am able to forge joint
parenting arrangements under the current law all the time. But I've done
this long enough to know that the real motivation in most of the cases for
wanting joint custody is financial by the non-custodial parent. He or she
could care less in most instances whether the kids live with him or her half
the time so long as the order says "joint physical custody" and child
support of "half of the cost of health insurance." In those instances where
both parents have truly been active in the raising of their children, and
decide to part, the parents are almost always mature enough to work together
to continue that relationship, and make the finances work as well. But
using the law to bully someone into a declaration of "joint physical
custody" (and let's make no mistake, that's what this law was, and is,
designed to do) just for manipulation purposes is bad law.
Thanks for keeping me in the loop. I appreciate the opportunity.