SDCSP Legislation 2004
2004 Family Law Legislation
The South Dakota Coalition for Shared Parenting
It continues to be the consensus of the South Dakota Coalition for Shared Parenting that the current South Dakota Family laws are not friendly to all parties involved, especially our children. We offer this legislation to address several concerns we have regarding the legal process. This proposed legislation is intended to recognize that both parents, the father and the mother, are of significance importance to their children following separation or divorce. We conclude that our laws should be changed to be “family friendly” and truly in the best interest of our children.
It is clear that the current standard guidelines are traditional, outdated and do not meet the needs of most divorced or separated children in South Dakota. In 2002, the Legislature and Governor passed laws which made the standard guidelines the default parenting schedule for all parents, unless they agree on a different schedule. We believe the default parenting schedule for children should be a balanced approach. In fact, studies show in states where parenting schedules are balanced, divorce rates decline and child support compliance increases. Instead of the current 95/270 day split, we propose that a child would spend time with both parents a minimum of 175 days (including overnights) per year. Of course, if the parents agree to another schedule due to geographical distance or lack of interest in parenting, these guidelines would not apply. We believe that the starting point for parenting following separation should be generous for both parents, particularly if the noncustodial parent is a fit and loving parent to the child and wishes to be an active and responsible parent to their children. We also believe that changing these guidelines would reduce the discord that is natural between parenting following separation so that they can work together to raise their children and reduce the incentive for one parent to “fight” to retain custody of a child over the other parent, thus saving both parents the high cost of litigation. Deviation from these guidelines would be made if conditions were met under Section 3 or parents agreed otherwise.
We believe that both parents continue to be responsible for a child's well-being following separation and it is not for the State to intrude immediately and say that one parent has primary custody of the child and the other does not. Although consideration of the primary caregiver may be important, it disregards the import role of the other parent. We believe the task for the court to determine is whether both spouses were contributing to the joint enterprise of providing a safe, secure and loving environment which attended to the child's economic, physical and emotional needs and whether both parents are able to continue this in the future. We also believe that providing custody of a child to the parent who has been the primary caregiver in the previous 30 days opens the door to hostility, abuse and manipulation.
In order for there to be a deviation from the Standard Guidelines written by the SD Supreme Court, we believe these 11 factors should be considered. We believe these factors are extremely important and relevant factors when considering parenting schedules and custody of children. This law would reinforce the importance of both parents and provide clear circumstances for one or both parents to consider if they intend to use the family law system for their benefit and personal gain or if they sincerely believe it would not be in the best interest of a child to spend significant time with the other parent. The 11 factors are similar to the factors present in § 25-5-29 & § 25-5-30 (Timmy's Law) passed in 2002 regarding 3rd party custody.
Of striking importance to this legislation is a requirement that upon filing for divorce, parent would be required within 30 days to attend parent education classes regarding the effects of divorce, methods of helping their children and working parents through the process of developing a parenting plan for their children. Studies continue to show there is great benefit to parents and children if this is accomplished as soon as possible after filing for divorce. One of the primary outcomes of this class would be a workable parenting plan without the expense of litigation or even mediation. Currently, members of the SD Coalition for Shared Parenting are researching similar programs from other states. We believe that if parents realize that both parent will spend a minimum of 175 days with their children, barring Section 3 factors, they will work together to make that schedule a reality.
Section 5 and Section 6:
We believe that § 25-4A-2 is a permissive law and that a hearing shall be held if there is a sincere request and documentation of missed parenting time with children. We believe this process is in the best interest of children. Unfortunately, this is not currently the case. Missed parenting time can go on for years without intervention from our family law system, a system that is designed to protect the rights of children and parents. We also believe that Section 6 strengthens the enforcement of parenting time by providing additional options for Judges to consider other than imprisonment in jail and fines not to exceed one thousand dollars. The options listed here are more reasonable and have clearer relationship to the violation.