Questions & Answers
Rebuttable Presumption of Joint Physical Custody
(Revised 11/15/02,12/21/02, 2/13/2004)
We petition the South Dakota Legislature and Governor to pass a law that will direct the courts to provide minor children with maximized, meaningful and continuing contact with both their parents and encourage parents to share in the equal rights and responsibilities of rearing their children following separation or divorce. We believe this law should expressly provide for and enforce a minimum of 175 days per year of parenting time of both parents with a child unless there is proof that such custody arrangement would be harmful to the child's growth and development.
What is Joint Physical Custody or Equal Shared Parenting?
Shared Parenting is a joint, responsible parenting arrangement where children are provided the opportunity to have both of their parents substantially share in their physical, psychological, emotional and spiritual development after separation or divorce. It maximizes the opportunity for a close, frequent, meaningful and continuing relationship between a child and parents regardless of marital status and preserves the dignity of all members of a separated family.
Who is shared parenting for?
It is for the estimated 2,241 children in South Dakota who are affected by divorce each year.1 It is for an estimated 95% of 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 is NOT for the
5% of parents who have a history of child abuse or neglect, abandonment, domestic violence, significant problem with alcohol or drug abuse, or have no desire to be an active, responsible parent to their children.2
Why is Presumptive Shared Parenting Important?
As a matter of law serving as a moral force, it encourages the best in all of our citizens, starting with the presumption that we do want, we do expect, that we do believe both parents are going to be equally involved in their child's development.
Social studies confirm that children do better when both parents are actively involved in their lives and when children spend substantial time with both parents2b. Regardless of the social problem that is under consideration - teenage pregnancy, suicide, drug abuse, poor academic performance, juvenile delinquency, school drop-out or any of the other “ills” that plague today's youth - the uniform answer from researchers is that, on average, children with two actively involved parents fare better. Let's face it, our juvenile detention center, counseling center and prison populations are not getting smaller. Research is consistently suggesting that generally, children may do better when their fathers have primary custody than mothers. However, we believe that joint physical custody and equal shared parenting is a formidable solution to enhancing a child's future and is in the best interest of most children3a & 3b .
Shared parenting places both parents on an equal level and recognizes that both parents are a significant part of their children's lives. It provides balance and empowers both parents to continue, maintain and develop their relationship with their children.
It reduces the emotional and financial costs involved in the current adversarial, win-lose - “he did-she did” - “he said-she said” reality of custody litigation for the entire family. These assets can be better used to establish two healthy, functional and child-friendly homes.
It increases the opportunity for grieving family members of divorce to experience less loss and pain, enabling them to move ahead and heal faster so that the well-being of children can be met following the trauma of separation and divorce.
Seventy-two percent of U.S. citizens believe the most significant social problem facing our country today is the physical absence of the father from the home, resulting in a lack of involvement of fathers in the rearing and development of children.4 Unfortunately, the amount of contact non-custodial fathers have with their children diminishes over time following separation or divorce. Reasons include: lack of desire, lack of parenting skills and knowledge, mobility, lack of access due to actions of the former spouse, inadequate financial resources, the artificial nature of “visitation”, unequal parenting power and lack of support for father involvement by the courts.5
In states where Shared Parenting is promoted, the divorce rates have significantly declined and child support compliance have significantly increased.5A
A presumption of joint physical custody with near equal time addresses many of the barriers to fatherhood and allows both parents to be an active and responsible parent to their child, enabling the development of the parent relationship and bond that was established while parents were living together.
Why do we need to change the custody laws in South Dakota?
Currently, South Dakota custody law and the Judicial system do not encourage a child's need for a frequent, meaningful and ongoing relationship of both parents with children nor do they encourage or even address joint physical custody. The laws are designed, even at the time of separation, to pick a “winner” and a “loser”. The “winner” is given custody of a child and the “loser” is the noncustodial parent. The “winner” is provided 74% overnight access to a child whereas the “loser” is provided 26% overnight access to the child per year.6
The “winner” is the primary caretaker and described as the one who, “cooks the meals, washes the clothes and diapers the child”.7 This typically means, according to the South Dakota Supreme Court, the mother is given preference for custody of children. This “tender years” approach of maternal preference, is a gender bias presumption that was found unacceptable in 1979 and a violation of the “Equal Rights” amendment of our Constitution.8 Accordingly, Minnesota law prohibits the court from using the primary caretaker factor as a presumption in determining the best interests of the child and requires detailed findings on all factors which led to the determination of custody. South Dakota does not.
Despite SDCL 25-5-8 which provides neither parent's rights are superior to each other while separated and SDCL 25-4-45 “…neither parent may be given preference over the other in determining custody”, our Judiciary, sworn to uphold the Constitution, clearly promotes a maternal preference in child custody matters. Is it any different from sex discrimination in the workplace or requiring “colored” folks to sit in the back of the bus? Is it any different from giving a test to different ethnic groups of people and not accounting for racial differences? Gender bias is discrimination. Discrimination is unconstitutional.
Our South Dakota courts say, you are not worthy to be an equal parent in your child's lives, simply because you have separated or divorced and are the father.
During the marriage, typically, we know that the status of the child is to have a pure and unrestricted joint physical and legal custody with unlimited access to both parents, unless there is an order preventing such. Then, we take people who have had unrestricted access to their children and prevent them from exercising part of that prior right and responsibility simply because of separation or divorce. Shouldn't we work very hard to preserve for the children, for their best interest, as much of that preexisting joint custody, as much of that access to both parents as we can. When a divorce comes, does a child have less need or more need for the involvement of both parents? The child's need for both parents is actually greater because of the insecurity created by the divorce itself.
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, let us see what we can do to maximize the contributions of both?” Yet, in South Dakota, this is not the case. Children and parents are being denied a sufficient and equal opportunity to be a strong part of each other's lives.
It doesn't matter what social pathology you look at, teenage pregnancies, drug abuse, suicide, low self-esteem, school dropout… You can go through the litany of pathology that the government has to spend money to try to cure. Every single one of them is linked to family breakdown and parental absence. We don't have an excess of parenting. We have a shortage of parenting in South Dakota3a & 3b.
What about the “Best Interest of the Child” Doctrine that guides our courts?
“Best Interest of the Child” is a statutory goal that has provided the foundation for competition, conflict and hostility in litigation. Instead of “Best Interest of the Child”, wouldn't the standard be more realistic as reasonable “Interest of the Child”? Are we comparing parents to a “Ozzie and Harriet” standard or are we comparing parents to what occurs in the majority of intact families in South Dakota? Are we expecting parents-apart to be better parents than parents in intact families and why is it appropriate for the state to assist in further family breakdown simply because of separation or divorce? Would the State go into an intact family home and limit access to either parent due to inconsistency, instability, a poorly kept home, or because one parent does more “caretaking” or is the “more fit” parent? No - the State would likely provide assistance to improve the situation for the family. Yet, this access limitation is standard for families of divorce and separation. As long as there is no history of domestic violence, abuse, neglect, drug or alcohol abuse, or other inter-family problems that are harmful to a child, shouldn't both parents be considered fit and equal caretakers of their children?
One cannot ignore the fact that a family, whether intact or apart, is a system. What impacts one member of the family affects all other members of the family, especially children. When one parent is not considered of equal importance in a family system, it will generally have a negative impact on the health of the other family members, especially the “interest of the child”. “Balance” is a determinate factor in how healthy a family apart or together is. Making the “best interest of the child” unobtainable by one parent or the other in order to create a winner/loser is destructive to the parents and even more destructive to a child. It is not the South Dakota way.
Originally intended to be a gender-neutral “best interest” standard, the courts have broad discretion in awarding custody of children. SD 25-4-45 reads “…In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare…” Fuerstenberg v. Fuerstenberg, 1999 SD 35 provides a summary of guiding “best interest of the child” principles that address fitness, stability, primary caretaker and other considerations.
Fitness: “Which parent is better equipped to provide for the child's temporal, mental and moral welfare”? Is it a contest to see who is more fit? Yet in our courts, with the winner - loser mentality of litigation - it is a contest of hostilities. Most parents of separation are fit and able. After all, most parents were fit and able when they were collectively caring for their family while living together. Why would that change simply because a family becomes separated or divorced? Shouldn't we be expecting a reasonable standard of fitness that is similar to what occurs in most intact families?
B. Stability: “Who can provide a stable and consistent home environment?”
The majority of parents can provide a stable and consistent home environment with a reasonable transition period for either parent who has moved out of the marital home, allowing for the process of grieving the loss. Parents may also need help. The question should be, “Can both parents provide a stable and consistent home environment and how can the State of South Dakota assist to encourage a stable and consistent home environment in order to preserve the critical relationship between parents and children”. West Virginia provides education, training and assistance to help preserve the significant relationship between divorcing parents and children and to enhance stability within the homes. South Dakota does not.
“Unfortunately, the concept of location-engendered stability (one home, one bed) has been incorrectly overemphasized for infants and toddlers, without due consideration for the greater significance to the child of the emotional, social, and cognitive contributions of both parent-child relationships. Living in one location (geographic stability) ensures only one type of stability. Stability is also created for infants (and older children) by the predictable comings and goings, regular feeding and sleeping schedules, consistent and appropriate care, affection and acceptance from both parents.”9
“Who is more committed and involved in parenting the child?” “The primary caretaker can be identified by determining which parent invested predominant time, care and consistency in raising the child. It is evidenced in such matters as spending time with the child, preparing meals, playing, attending to medical care, choosing clothing, involvement in school, attending the child's extracurricular activities, reading to the child, preparing birthday parties, knowing the pediatrician, consistent disciplining, arranging transportation and providing appropriate clothing, foods and toys.”
This typical “primary caretaker” definition gives credit for cooking the meals, washing the clothes and changing the diapers and denies credit for cutting the grass, shoveling the snow or maintaining the house and car. Credit is given for laundering the little league uniform but not for developing a child's interest in baseball.
In any two-adult household, there is a division of the tasks necessary to simply carry on with life. The allocation of tasks is mutually agreed upon, implicitly or explicitly in a family. All of these performed tasks collectively support a family, with or without children. What changes with the arrival of children is the necessity to meet a child's need to develop a relationship with both parents. Studies show that “fathers spend just as much time in primary interaction as do mothers”.10 The issue of who-did-what during the marriage is flawed and ignores the reality that both parents were an integral part of a child's life whether they were interacting with them while washing the clothes or while taking them to a ballgame.
After separation or divorce, the agreed specialization of tasks during the joint enterprise of marriage will change. Each former spouse will have to perform the full range of tasks necessary to meet the needs of the children during their periods of residence. We know this is necessary and we know that it happens even in cases of the minimal, “standard” visitation order. In essence, insisting that the tasks most often performed by mothers are worthy while those of fathers are not is simply and dangerously a gender bias which continues to taint custody decisions in South Dakota. 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.11
The concept of “Best interest of a Child has been updated in many other states to more realistic and relevant factors of consideration including:
The likelihood of serious physical or emotional harm to the child if placed in the parent's custody;
A history of abuse or neglect as defined in § 26-8A-2, domestic abuse as defined in § 25-10-1, or alcohol or drug abuse;
The ability of either parent to provide for a child's physical, emotional, and other needs over a significant period of time;
The establishment of a bonded relationship between the child and either parent, sufficient to cause emotional harm to the child;
The impact of geographic separation or other situation that would cause significant instability and insecurity in the child's future.
The ability of both parties to cooperate and communicate regarding the children and whether either party unreasonably refuses to cooperate or communicate with the other party;
The pattern of involvement of the parties with the child that does not reflect a system of values, time commitment, and mutual support in raising the child;
The ability of either party to encourage the sharing of love, affection, and contact between the child and the other party;
An impairment to a child's right to an education while in the custody of either parent;
The child's preference given sufficient age and mental capacity; and
Whether either parent has abandoned, forfeited or surrendered their parental rights over the child.
Does the South Dakota Supreme Court support a presumption of joint physical custody?
Judges have a strong desire to retain full judicial discretion in custody proceedings and dislike prescriptive laws that limit their authority. They certainly don't want to be tied to a certain percentage of parenting time. Many are stuck in the “mother knows best, father knows least” mode of deciding custody. Many still believe in the unconstitutional yet practiced, tender-years doctrine.7 Despite current child development research, little has changed in the last 5 years regarding Judicial “visitation” guidelines. Little has changed in the last 5 years, though a significant number of other states have custody laws which now strongly support a minor child's need for frequent, maximized, meaningful and continuing contact with both their parents, and a parent's need to share in the equal rights and responsibilities of rearing their children following separation or divorce. For example, Alaska and Oklahoma provide substantially equal access between minor children and both parents at the onset of separation. Texas and the District of Columbia provide a minimum of 40% access between children and their parents. South Dakota provides physical custody to one (typically the mother) and non-custody to the other parent at the onset of separation. South Dakota provides our children an access of 74% and 26% overnights, respectively. South Dakota can do much better to benefit the children of our state!
Do Attorneys Support a Presumption of Joint Physical Custody?
Some do, many don't. The majority of the South Dakota family law committee continues to oppose the introduction of shared parenting laws within South Dakota without consideration for the children of our state. With approximately 2,700 divorces in South Dakota each year, the “Divorce Industry” is big money. If a portion of your bread-and-butter were divorce proceedings, would you want fewer divorce proceedings? Many South Dakota parents go into great debt because they wish to have a significant relationship with their children. These funds could better be used for maximizing both parent's relationship with a child.
In light of the current South Dakota custody laws and the position of the Supreme Court, most attorneys are going to “fight” for custody for their paying clients and try to get the “best deal”, regardless how it affects the family “system” and children in South Dakota. Finally, attorneys have to work with judges who don't support a rebuttable presumption of joint physical custody. Some attorneys believe there will be repercussions in legal proceedings if they speak out in favor of shared parenting.
Shared parenting is designed to reduce litigation and assumes that both parents are good parents for their children. Attorneys must begin to educate their clients on the benefits of joint physical custody for all family members and actively defend a parents' constitutional right to equal custody and access unless harmful to a child.12
Does Women Advocacy Support this Legislation?
In 1995, Karen DeCrow, the former president of the National Organization for Women, stated: "If there is a divorce in the family, I urge a presumption of joint custody of the children. Shared parenting is not only fair to men and children, it is the best option for women. After observing women's rights and responsibilities for more than a quarter of a century of feminist activism, I conclude that shared parenting is great for women, giving time and opportunity for female parents to pursue education, training, jobs, careers, profession and leisure. There is nothing scientific, logical or rational in excluding men or forever holding women and children as if in swaddling clothes in an eternally loving bondage. Most of us have acknowledged that women can do everything that men can do. It is time now for us to acknowledge that men can do everything women can do.” The question is, why are there so many women across the country supporting the Shared Parenting movement?
What about Custody Laws in other States?
Currrently, a majority of States in the United States have some form of Shared Parenting legislation. According to the American Bar Association, as of 1996, 43 states authorize Joint Custody through their state laws, South Dakota does not. How can anyone justify that Shared Parenting is not in the Best interest of Children in South Dakota where so many states have some form of Shared Parenting laws. The following are considered positive and proactive shared parenting states:
Oklahoma: “It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. To effectuate this policy, if requested by a parent, the court shall provide substantially equal access to the minor children to both parents at a temporary order hearing, unless the court finds that such shared parenting would be detrimental to such child. The burden of proof that such shared parenting would be detrimental to such child shall be upon the parent requesting sole custody and the reason for such determination shall be documented in the court record”.
Wisconsin: 767.24 (4) (a) "The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households".
Colorado: “Legislative declaration. The general assembly finds and declares that it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents”.
Florida: “It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing”.
Iowa: “The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent”.
Louisiana: “ "Shared custody" means a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time”.
Maine: “The Legislature finds and declares that it is the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy”.
Missouri: "Joint physical custody" means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents; Joint physical and joint legal custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint physical and joint legal custody award”.
Texas: “The public policy of this state is to:(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage”.
Alaska: Unless it is shown to be detrimental to the welfare of the child, the child shall have, to the greatest degree practical, equal access to both parents during the time that the court considers an award of custody.
The court may award shared custody to both parents if shared custody is determined by the court to be in the best interests of the child. An award of shared custody shall assure that the child has frequent and continuing contact with each parent to the maximum extent possible.
California: “The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy…”
Washington, D.C: (Actual introduction on the D.C. Parenting Plan form) `District of Columbia law contains a “rebuttable presumption” that joint custody is in the best interests of the child. The term “rebuttable presumption” means that the judge will order joint physical custody and joint legal custody unless one of the parties presents evidence which shows that another arrangement will be better for the child. Joint physical custody means that each parent will have substantial time with the child (usually between 40% and 60%)…”
West Virginia: “… the Legislature declares that a child's best interest will be served by assuring that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children, to educate parents on their rights and responsibilities and the effect their separation may have on children, to encourage mediation of disputes, and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or divorced.”
What about children going from home to home? Shouldn't the children have only one home?
This is a traditional belief that is no longer supported by research and reality. Our society has changed considerably over the years (e.g. social mobility, increased stress in the household, day care providers raising children, both parents working) and we can no longer function under a “June and Ward Cleaver” standard. Despite the change from one household to two, you still have children who typically desire and need equal access to their parents and you generally have two loving parents who wish to maximize their access to their child. Studies continue to support that the relationship that a child has with both parents is significantly more important that going back and forth to two homes. The potential effects of going back and forth can be minimized with a consistent schedule, fewer transitions and lengthier periods of time. Any effect of going back and forth is a small price to pay for developing and maintaining a loving and caring relationship with a child. . In fact, a recent study in Australia suggested that “Children of split families would prefer to divide their time equally between their divorced parents” (Dec, 2003).
What about parents whose equal time is not a practical consideration due to employment or distance or one parent does not want to have equal time with a child?
The best way to maximize a child's relationship with both parents is to have a law that provides for the presumption of equal shared parenting to those who are willing and fit. If a parent chooses less time with their child, as unfortunate as it is for the children, it remains that parent's choice. Our proposal of 175 days is a starting point for negotiation, similar to the 50/50 starting point for the financial aspects of divorce.
The child's opportunity to spend time with either parent may be impacted by each parent's employment commitments. For example, if one parent has extensive out-of-town travel commitments, the court may find it necessary to structure the physical custody schedule to account for these commitments. One obvious accommodation is to provide less week-night time and more weekend time with the parent whose work requires travel.
Where the parents live close to one another, particularly in the same school district, there should be little weighed since joint physical custody will normally maintain the child's social and school life. If one parent chooses to relocate out of the school district, the court must evaluate the impact of the move upon the child's social and school life and relationship with the other parent. In such situations, joint physical custody is normally maintained by providing longer periods of physical custody with fewer exchanges, for example, school year in the unmoved household with winter break, spring break and summer vacation in the moved household.
Texas has been truly creative in their default parenting schedule which sets 150 overnights between noncustodial parents and children. They do this by giving the noncustodial parent every 1st, 3rd and 5th weekend in a month, one overnight during the week, overnight on Sunday of their weekend or Monday if it is a three day weekend and extended parenting time during the summer.
We should, as a matter of the law serving as a moral force, as a matter of the law encouraging the best in all of our citizens, start with the presumption that we do want, we do expect, that we do believe that both parents are going to be involved. Surely, that won't be the case in all situations but isn't that where we want to start out? Don't we want to believe, don't we want to encourage that dual parent involvement. Is there too much parenting in our state? We should encourage more parenting.
Don't Infants and Toddlers need more time with the mother instead of the father?
Kelly & Lamb (2000) state in their article, “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children” the following:
“Current studies conclude if the parents lived together prior to separation and the relationships with both parents were at least of adequate quality and supportiveness, the central challenge is to maintain both infant-parent attachments after separation. Furthermore, when parents have never lived together, and the infant has had no opportunity to become attached to one of the parents, special efforts are needed to foster the development of attachment relationships”.
“To be responsive to the infant's psychological needs, the parenting schedules adopted for children younger than 3 must involve more transitions, rather than fewer, to ensure the continuity of both relationships and the child's security and comfort during a time of great change. The ideal situation is one in which infants and toddlers have opportunities to interact with both parents every day or every other day in a variety of functional contexts (feeding, play, discipline, basic care, limit setting, putting to bed, etc)”.
“With the historic focus on preserving the mother-infant attachment while establishing an exclusive home -- overnights or extended visits with the other parent (mostly the father) were long forbidden or strongly discouraged by judges…” “Such unnecessary restrictive and prescriptive guidelines were not based on child development research”.
“There is absolutely no evidence that children's psychological adjustment or the relationship between children and their parents are harmed when children spend overnight periods with their other parent. Indeed, there is substantial evidence regarding the benefits of these regular experiences. Aside from maintaining and deepening attachments, overnights provide children with a diversity of social, emotional, and cognitively stimulating experiences that promote adaptability and healthy development. In addition, meaningful father-child relationships may encourage fathers to remain involved in their children's lives by making them feel enfranchised as a parent. Other advantages of overnights are the normal combination of leisure and “real” time that extended parenting affords, the ability to stay abreast of the constant and complex changes in the child's development, opportunities for effective discipline and teaching that are central to good parenting and opportunities to reconnect with a child in a meaningful way.
In contrast, brief, 2-hour visits remind infants that the visiting parents exist but do not provide the broad array of parenting activities that anchor the relationships in their minds”.
“When mothers are breast-feeding, there is considerable hesitation, indecision and perhaps strong maternal resistance regarding extended overnight or full day separations. There is no evidence that breast-fed babies form close or more secure relationships to their parents that do bottle-fed babies. A father can feed an infant with the mother's expressed milk, particularly after nursing routines are well established”.
Can you have Joint Physical Custody when one parent does not agree to it?
Of course. What theory of best interest of the child could ever suggest that one parent can veto the child's best interest and reject shared parenting. What theory of best interest of the child could ever say that the most hostile parent ought to have the power to veto the other parent's involvement? Yet, in South Dakota, if both parents don't agree on joint physical custody, one parent's time with their children is considerably restricted.
That is why a rebuttable presumption for joint physical custody should be a primary consideration by the courts. If joint physical custody is not in the best interest of a child due to proven abuse, abandonment, domestic violence, then custody of a child can be appropriately restricted. An objection by one parent to any custody arrangement should not be the sole basis for refusing shared parenting.
What about conflict?
Separation and divorce is a very emotional time for both. The grieving process naturally includes “anger”. It is also important to understand that custody and access disputes involve conflict, but it is clear that such conflict in and of itself is not necessarily harmful. “In fact, studies reviewed have found that sole-custody parents reported higher levels of conflict and joint custody couples reported less conflict, possibly because both parents could participate in their children's lives equally and not spend the time arguing over childcare decisions”11a. High conflict found harmful typically involves repeated incidents of spousal violence and verbal aggression continued at intense levels for extended periods of time and often in front of the children. High conflict is not in the best interest of a child.
You may hear the notion of, “Oh well, if parents are in conflict, oh, tsk, tsk, we can't possible have joint physical custody. That is the June and Ward Cleaver type of thinking. We think a family apart should be conflict free? Why should a family apart be any more conflict free than a family together or any other relationship and should be treat a family apart differently? Reasonable conflict with potential resolution is healthy for parents and children. So, do we really want to say, “tsk, tsk, there's conflict here so no joint physical custody. Don't we want to empower both parents in order to reduce conflict and thus, maximize all family relationships? Even in business, empowerment brings prosperity.
But…doesn't joint custody force unwilling parents to interact with each other?
Whether parents are awarded joint physical, joint legal or sole custody, parents have to interact with each other and to a certain degree, cooperate. However, in joint legal or sole custody, they interact from a basis of hostility. They interact from the basis of power and powerlessness. They interact from a basis in which one parent has been declared to be the loser and that parent is ever fearful of losing still more, of losing every last shred of contact and is ever struggling to try to get back into the child's life and restore what was taken away by the judicial decree.
“Although it is clear that a cooperative relationship between parents is beneficial, parenting schedules that promote meaningful child-parent relationships should not be restricted after separation if one or both parents are not able to cooperate. Disengaged parents may function effectively in their parallel domains and, in so doing, enhance their children's adjustment.”9
Isn't Shared Parenting a guise for control over the other spouse?
If you are asking a question about who's trying to control whom and one parent comes to you and says, “Mr. Judge, I would like to have shared parenting so my children can have two parents equally” and the other parent says, “I want sole physical custody and my former spouse should have joint legal custody only,” who is trying to exercise power and control? Who is the parent that has the interest of the child at heart?
Shared Parenting is not as much for parents as it is for children. Shared Parenting means that a child will have substantial relationships with both parents. As for parents, most parents are simply ordinary people who love their children and are fit and eager to provide for the care of their children. If parents understand at the outset that they will continue to be a substantial part of their child's life after separation or divorce, that there are no incentives for a custody fight, there are no winners or losers and that they will both have substantially equal time with their children, they will be equally empowered to work for the best interests of the children and their family apart. There will be little opportunity for any control or power plays. Parents will basically share their children equally. Shared parenting is designed to reduce conflict, reduce fear and work for the best interests of the child. Which is more likely to engender hostility, which is more likely to create conflict - a winner/loser situation or sharing? Both parents have the inherent right to responsibly manage and “control” their children. Shared parenting gives both parents control over what is most important to them, their children.
How does Shared Parenting minimize parent alienation?
Parent alienation is typically defined as one parent's passive or aggressive attempt over time to create a single, sole relationship with a child without regard to the other parent.13 The more time a child spends with one parent over the other, the more likely parent alienation will be successful against the other parent. If parent alienation is allowed to take hold, it is extremely damaging to the child. Parent alienation is not in the best interest of children. The current custody laws in South Dakota open the door for parent alienation. The current state law permits a minimum of 26% visitation between a child and noncustodial parent. This is typically the standard in most cases of custody where both parents disagree on custody issues. The winner - loser adversarial process also puts the custodial parent on top and the noncustodial parent in a lesser position.
A presumption of joint physical custody with substantially equal parenting time reduces the opportunity for parent alienation to occur in families-apart and empowers both parent to be on an equal level in the development and care of their children.
Won't shared parenting increase the risk of domestic violence among families?
Many opponents believe this and argue from a presumption of pathology. It assumes that the worst behavior of the most extreme individual is the norm. Policy cannot be made by anecdote and the law should not be based upon this presumption of pathology. The law should serve the vast bulk of fit and loving parents who simply want to be with their children. The proposed legislation specifically recognizes that domestic abuse, child abuse/ neglect, etc., like all other forms of abhorrent behavior, is relevant and must be strongly considered by the judge in determining custody and access.
Will a Judicial presumption of shared parenting increase litigation in the courts?
For most parents, shared parenting is inherently designed to reduce litigation. If parents are on equal ground and have equal access to their children following divorce or separation, what is there to litigate?
Perhaps you are wondering how this would affect current custody orders. Judicial case law allows modification to custody orders where there is a substantial change in circumstances. It is up to the Legislature to decide if the change to a presumption of joint physical custody is considered a substantial change in circumstances.
It would be beneficial to children if the inclusion of this presumption of joint physical custody was considered a substantial change in circumstances so that children affected by divorce today could spend more time with their noncustodial parent. However, this may be an overwhelming task for the courts to accomplish. Looking at the bigger picture, the implementation of this presumption would be the beginning of recognizing that both parents are a significant part of a child's life and would generally affect initial custody hearings and hearings where there are other substantial changes in circumstance. A change in current law towards presumptive joint physical custody would send a strong message to both parents of divorce that the State of South Dakota presumes and encourages a shared parenting arrangement unless harmful to the child.
Isn't shared parenting unconstitutional?
What would be unconstitutional about children having equal access to both parents and having two parents who equally parent them following separation or divorce? In reality, many consider South Dakota's current system of determining custody and access, unconstitutional under the 14th Amendment of the United States Constitution (equal rights - gender/marital status and due process).12
Aren't noncustodial parents seeking joint physical custody only to avoid child support?
Opponents of joint custody appear to foster this stereotype. Most parents are simply ordinary people who love their children, and are fit and eager to provide for the care of their children. Since the corollary of this claim would be that the custodial parents seek sole custody or joint legal custody only to obtain child support, the need to reject this stereotype should prevail.
Since 2001, South Dakota laws have had specific provisions for the computation of child support in cases of joint physical custody or shared parenting. The enactment of the presumption in favor of physical joint custody will simply mean that more child support orders will be calculated under the shared parenting portion of the law rather than the joint legal or sole custody portion of South Dakota law.
Why aren't more parents involved in your initiative for Joint Physical Custody?
The South Dakota Coalition for Shared Parenting is growing. Most parents love their children and simply want to spend more time with their children.14 Many can agree on custody and access and many cannot. Many have experienced the South Dakota custodial “system” where one parent is not worthy to be an equal parent in their child's life. Many have given up and continue to be conditioned to accept the situation as “the way it is”. They feel the oppression of a bias, illogical and unfair “system” of custody and access in South Dakota and realize they have no control.15
They may have seen the well-being of their children decline and had no say for improving the situation. They may have experienced their children moving to another city or state with little to no consideration or recourse. They may be locked into a divorce decree that is based upon the current bias of the courts. They may have experienced successful or unsuccessful parental alienation, including false allegations. They may have spent thousands of dollars and gone into debt trying to recover their parenting rights. They may be experiencing a lack of enforcement of their parenting time with a child. They may be distraught, depressed and on the verge of attempting suicide.16 They may have experienced litigation in a judicial system that prefers mothers to fathers. Their attorneys may have told them that the best schedule of access they can have with their children is every other weekend and one or two 3-hour “visits” per week. Parents may have been told if they challenge the minimum guidelines, they may get less time with their children and have to pay court costs and attorney fees for both parents. They may have been told that mature parents do not litigate. They may have been rebuffed or patronized by any attempt to change the custody laws in South Dakota. As one parent who successfully persisted for three and one-half years to receive equal access stated, “I'm broke, I'm tired, and I take care of my kids”. 17
What other issues are important to address in Custody Law for Families of Separation or Divorce?
We are seeking a change in South Dakota custody law that promotes “family”, is “family friendly” and minimizes the risk to children of not having two active parents in their lives. We believe this change should be balanced, assume both parents are equally important to a child, empower both parents, help parents to develop a parenting plan, discourage relocation in a shared parenting arrangement and discourage the win-lose situation and bias in the courts.
A South Dakota law that recognizes both parent's importance in the raising of their children and maximizes the amount of time a child has with both parents is a critical and strong beginning. This combined with establishing mandatory parent education classes, providing assistance in developing parenting plans; requiring a critical look at relocating children from their other parent, current school district and extended family; changing the legal terms of custodial, noncustodial, visitation, etc. to family-friendly terms; addressing parental alienation, enhancing current contempt law for violating custody decrees with substance and a gradient of choices, and encouragement of mediation for equal shared parenting will be a positive and beneficial change for children and parents of divorce and separation in South Dakota.
Children need Both Parents Equally, Not Visitors.
1Johnson, H.P, 0Brien-Strain, M. and Acumen, LLC (Nov, 2000). Getting to Know the Future Customers of the Office of Child Support: Projections Report for 2004 and 2009. U.S. Department of Health and Human Services: Office of Child Support Enforcement.
2 Baron, R.M. (1999). Personal communication. Professor of Law, University of South Dakota, School of Law.
2bBauserman, R. (2002). Child Adjustment in Joint-Custody Versus Sole-Custody Arrangements: A Meta-Analytic Review. Journal of Family Psychology , Vol 16, No.1.
3a Horn, W.F. and Sylvester, T. (2002). Father Facts: Fourth Edition. National Fatherhood Initiative: Gaithersburg, MD.
3b Warren Farrell, Ph.D. (2001). Father and Child Reunion: How to Bring the Dads We Need to the Children We Love. Penguin Putnam Inc., New York.
4 Gallop Poll - The National Center for Fathering (1999). Today's Father, v 7(2-3), 1999:16.
5 Nord, C.W. and Zill, N. (1996). Non-Custodial Parents' Participation in Their Children's Lives: Evidence from the Survey of Income and Program Participation. Vol II: Synthesis of Literature. Prepared for the Office of the Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services.
5a Kuhn, Richard and Guidubaldi. Child Custody Policies and Divoce Rates in the United States. “ Paper presented at the 11th National Conference of the Children's Rights Council, Washington, DC., 1997.
6 In 2002, SDCL 25-4A-0 gave the SD Supreme Court the responsibility to establish standard guidelines of child visitation in any custody proceeding. These guidelines provide children age 6+ access to the noncustodial parent for 95 overnights per year. They are the default parenting plan if parents disagree within 30 days of filing for divorce.
7 Acting Supreme Court Justice Max Gors. (Feb, 2002) public testimony presented in support of House Bill 1302 to the House State Affairs Committee. “I think it is fair to say that in almost every situation we can figure out who is the primary caregiver. Evidence would be who makes the meals, who washes the clothes, who changes the diapers. It's the same kind of decision we make now when we decide who the primary caregiver is when we're awarding interim custody”.
8 Baron, R.M. (Jan, 1999). South Dakota Series: Cases on Materials on Family Law for the South Dakota Lawyer: 4th Edition. University of South Dakota School of Law.
9 Kelly, J.B. and Lamb, M.E. (Jul, 2000). Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children. Family and Conciliation Courts Review; Volume 38, Issue 3: 2970311, Sage Publications, Los Angeles.
10 Henry, R.K.(Summer, 1994). Primary Caretaker: Is It a Ruse. Family Advocate. Family Advocate is a publication of the American Bar Association.
11 Henry, R.K. (July/August, 1996). The District of Columbia's New Joint Custody of Children Act. The Washington Lawyer. p.50.
11a Willenz, Pam (Mar 2002). Children Likely To Be Better Adjusted in Joint vs Sole Custody Arrangements in Most Cases, According to Review of Research. American Psychological Association Press release, Public Affairs Office.
12Merz, Michael R., United States Magistrate Judge (Sept, 2002) U.S. District Court for the Southern District of Ohio Western Division at Dayton. Order Joining the State of Ohio as a Party Defendant. Issue: the constitutionality of Ohio domestic relations court to deprive a biological parent, in a divorce situation, of equal custodial parent status without a finding by clear and convincing evidence that the parent so deprived is an unfit parent.
13 Darnall, D. (1999) Parental Alienation: Not in the Best Interest of the Children. North Dakota Law Review. and Darnall, D. (1998) Divorce Casualties: Protecting your Children from Parental Alienation. Taylor Publishing Company, Dallas, Texas.
14Yeung, W. Jean, et al. "Children's Time with Fathers in Intact Families." Paper presented at the Annual Meeting of the American Sociological Association, Chicago, IL, August, 2000. In a study of fathers' interactions with their children in intact two-parent families, nearly 90% of the fathers surveyed said that being a father is the most fulfilling role a man can have.
15 Oppression. Diener (2000) Definitions to Help Understand and Counter Harassment - Collins Middle School, Salem, MA.: A pattern or system of inequality which gives power and privileges to members of one group of people at the expense of another. Merriam-Webster Collegiate Dictionary: unjust or cruel exercise of authority or power b : something that oppresses especially in being an unjust or excessive exercise of power
16 Warren Farrell, Ph.D. (2001). Father and Child Reunion: How to Bring the Dads We Need to the Children We Love. Penguin Putnam Inc., New York. "The risk of suicide has recently risen only for men -- from four times higher than women's risk to almost five times higher. And divorce increases his risk of suicide even more, to ten times greater than a divorced woman's." -- “If he is fighting to be with his and your children, and he loses, I predict we will eventually discover that American men in that position are about fifteen times more likely to commit suicide than their wives; if he feels he has been falsely accused of abusing you, about twenty times greater; if he feels he has been falsely accused of child molestation, about thirty times greater.”
17Pitts, T. (2002) Personal Communication.
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"Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle.
That person, the child who is not an official party to the lawsuit but whose well-being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it.
Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce."
--Presiding Judge Dorothy T. Beasley,
Georgia Court of Appeals, “In the Interest of A.R.B., a Child, “ July 2, 1993
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“Over the past four decades, Fatherlessness has emerged as one of out greatest social problems. We know that children who grow up with absent fathers can suffer lasting damage. Fatherlessness is not the only cause of these things, but our nation must recognize it is an important factor.” --President George W. Bush - June 7, 2001
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"The interest of the parents in the care, custody, and control of their children - - is perhaps the oldest of the fundamental liberty interests recognized by this Court." U.S. Supreme Court, 2000
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“I believe this presumption (in favor of shared parenting) will help settle at least 25 to 30 percent of all child custody cases. The attorneys 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.” A.M. Keith, former chief justice of the Minnesota Supreme Court - who, during his years in private practice, was a divorce lawyer.
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Written by Steven Mathis, President of the South Dakota Coalition for Shared Parenting. Steve is a divorced father of two children, ages 9 and 14. He has a Master's in Behavior Analysis & Therapy and has completed his doctoral coursework in School Psychology. Steve has worked as a school psychologist, psychologist, group home administrator and researcher. He has provided services to children and adults with developmental disabilities and provided training & therapy to families of abuse & neglect.