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Argus Leader, September 30, 1999

Professor Roger M. Baron, Family Law Professor
                                              University of South Dakota

These observations are submitted in response to the editorial on domestic violence.

As one surveys the existing “laws” available for the vindication of claims by spouses involved in a domestic dispute in South Dakota, these laws have been made tremendously one-sided in favor of custodial parents (usually mothers). In a relatively short period of time, there has been a great birth of new laws and remedies. Laws relating to the collection of child support and for protection against domestic violence have been perfected to the finest detail. SDCL 25-10 presently permits the immediate issuance of restraining orders based upon affidavits by victims.  SDCL 22-19A extends similar protection against “any” stalker, not just household members. Additionally, as noted in your editorial, criminal prosecutions on behalf of victims continue.

Unfortunately, unscrupulous parties take advantage of these same laws. Litigants have learned that by simply filing an affidavit, the other parent will be ordered out of the house, thereby gaining for them sole custody of the children.  Such proceedings are brought by non-victimized parents who seek to utilize these laws for leverage in custody disputes.   (This point was also made by National Columnist Kathleen Parker in her editorial column which was printed in the September 11, 1999 issue of the Argus.)

What can be done? Take away protection from the victims of domestic violence? Certainly not.  I believe that society, however, has a duty to level the playing field-to create new laws and to enhance existing laws for the protection of the custody interests of non-custodial parents.  

In 1992, I was requested by Hon. Steve Cutler, then Speaker of the House of Representatives, to draft such legislation. I drafted the bill which is now found essentially in SDCL 25-4A. The state-funded South Dakota Coalition Against Domestic Violence actively opposed this legislation. (One may question why the Coalition would “oppose” a measure to protect custody rights for non-custodial parents.)  The result of the intensive lobbying campaign by the Coalition was to render the entire bill nugatory. Key wording of the bill was changed so as to eliminate the requirement that the issuance of show cause orders be mandatory.  (In recent hearings before the Visitation Rights commission, it was confirmed that this chapter, SDCL 25-4A, lays dormant and ineffective.)   Accordingly, South Dakota law presently offers no effective remedy for non-custodial parents who are denied visitation rights.

The Argus is to be commended for considering the serious issues of “domestic violence.”  But, it would be nice to also see an endorsement for efforts to balance this unlevel playing field? Why not endorse efforts to create additional remedies for non-custodial parents? Or, endorse an amendment to SDCL 25-4A-2 which would mandate the issuance of show cause orders?

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