By Casey Wilson
Many are asking what will this years “shared parenting” bill that is being brought forth in the South Dakota Legislature will actually do to help kids and parents? South Dakota Shared Parenting and it’s members have been split in their support of this bill, and many are wondering what it will actually do, after all it has been brought forth as a compromise between the South Dakota State Bar and South Dakota Shared Parenting. Here is a copy of the bill in its current form.
We can break this bill down and tell you what it will do and what it won’t do.
What the bill will do if passed:
1) It will give judges a standardized set of guidelines to follow to make joint physical custody decisions, those factors include:
-whether a parent has been convicted of domestic violence
-whether a person has alienated or interfered with the other parents parenting time
-whether parents can communicate effectively
-whether parents can agree on how to generally raise their child
-whether one party is leaving child unsupervised with a sex offender
-whether one party has falsely accused another of child abuse
-whether one or both parties are opposed to shared custody
-whether child will suffer if shared custody is not awarded
-whether both parents have actively cared for the child
-whether a child is strongly opposed to shared parenting
-the geographic proximity of the parents
Now these are just considerations a court must take into consideration, not a one check mark and your out type thing. Why are these important? That leads use to our next point
2) We now know the rules to gaining joint physical custody, this is huge, prior to this, no one knew the rules, only the particular judge in which you were assigned.
3) It will help keep vindictive and higher conflict parents in check (if that’s possible)
4) It mentions joint physical custody many times, a term only used one time within statute prior
5) It shows that the State Bar Association is acknowledging shared parenting as a viable option
6) it begins to finally progress the movement of shared and equal parenting in South Dakota, which has never progressed despite many efforts
7) It factors parental fitness before custody is awarded keeping children safe from truly unfit parents
8) Judges need to give findings of fact and conclusions (reasons why) if joint physical custody is not awarded
9) It will give a little more standardization to this process, it is an injustice to the system if the same case was to be heard in two different circuits and entirely different custody outcomes could occur. This bill if in law would help that.
10) It will allow current orders to be modified using the criteria if a significant change of circumstances are satisfied. An enactment of the bill to law does not constitute a significant change of circumstances. Meaning you can use this law in a modification hearing.
11) There is no mention of a custodial or a non custodial parent in the entire bill
12) There is no presumption of a sole physical custodian
13) The court will continue to rule in what it currently calls “the best interest of the child”. It is fair to say the “best interest of the child” standard is based on a decision of one parent winning custody rather than the true “best interest of the child”, which has been proven in research to be as close to significantly equal time with both parents, this is currently not a factor in our so called Fuerstenberg factors which judges use to define the “best interest of the child”
14) in ALL custody determinations the court shall consider joint physical custody as an option.
What does this bill not do:
1) Once the factors have been satisfied it still does not ensure that the judge must award a joint physical custody order
2) One party can still refuse to agree to shared parenting, and this is a factor for a court to consider, but a refusal does not provide enough cause not to grant a shared custody order
3) False domestic violence and falsely filed protection orders are not included in the false accusations section. This is often how lawyers get one parent (usually the father) out of the house or to gain temporary custody in proceedings and is incredibly damaging to the future coparenting relationship, and could possibly be considered as a a factor to consider in alienation
4) Although it does take alienation and interference into consideration, it does not take one parent intentionally causing conflict (another lawyer tactic) into consideration. The simple fact of refusing to communicate can create a vast amount of conflict and this should be considered.
5) It does not automatically grant any parent shared placement
6) the current starting point (presumption)is still minimal parenting time established in the SD Parenting Guidelines
I think many in the group are upset as it is not a true equal custody presumption bill, which we have submitted in the past. The truth is it is time to start chipping away at the stone if you will, bit by bit rather than trying to take the entire thing at once. We need to begin making this process more fair one, two, and three steps at a time.
Honestly this is a firm step in the right direction, our group will continue to push for substantial change until equal parenting is the standard in South Dakota.
I think it’s a good sign the State Bar of South Dakota asked our input here, it has never happened before and perhaps it will mean we can work together in the future to make real progress for the kids and families of South Dakota.
In closing, I think it’s fair to point out that contested custody battles occur between two good parents. “Bad” parents usually do not fight for shared or equal custody, they leave or settle for minimal time. Outside of excessive distance between parents’ homes, there is no real justifiable reason a parent should refuse to agree to a shared parenting arrangement if both parents are fit. If they do refuse it should prove that parent to be an alienating parent, as he or she is trying to minimally involve the other parent, and this has been proven in research to be highly detrimental to a child’s well being.