Is this the year for co-parenting?

HB 1255 — the bill that would change SD’s child custody laws has gotten out of Senate committee and waits for a vote from the full Senate.

From my inbox, supporters of HB 1255 say:

Unfortunately, children in South Dakota who get caught up in a divorce are the victims of a cruel and unforgiving child custody system.  The impact of divorce of in our state is magnified because of antiquated child custody laws.

South Dakota is one of only 13 states that still maintain a non-custodial/custodial child custody system. ?what this means is that the courts will give one parent primary custody of the children, while the other parent is marginalized into a weekend visitor.

This system is exacerbated by an institutional bias in our courts that continues to fight against a system of shared parenting.

After thoroughly researching this area I discovered some alarming statistics regarding the children of divorce*:

  • Twice as likely to drop out of school as those from intact homes
  • Three times as apt to have a baby out of wedlock
  • Five-fold more likely to be in poverty
  • 12 times more apt to be incarcerated

Empirical research, scores of academic studies, reams of data, and just good old common-sense tell us that children need two parents; even after their parents are separated and divorced.

Opponents raised objections during the Senate committee hearing and the committee did make some adjustments to the bill to give a judge more wiggle room in making determinations in cases.

For me — and for parents in this unfortunate situation — the first priority needs to be the welfare of the children.

Supporters of HB 1255 are encouraging fellow supporters to contact their Senators before the floor vote early next week.

34 Replies to “Is this the year for co-parenting?”

  1. Rocker

    I believe the welfare of the child IS best served by having equal access to both parents. The legal system today creates far more legal hurdles for fathers to have a positive impact on their kids’ lives. Very sad and backward IMO.

    Would also love to see a law that prevents one parent refusing to allow the other parent contact with their child in the absence of a formal custody agreement. No current SD law prevents this abuse. For example, a woman may move out of a home she shares with the father of her child and then refuse to allow that child to see the father until he sues her for custody in court. She’s guilty of nothing – won’t even get a slap on the wrist.

  2. MC Post author

    IMHO Divorce is way to easy to get. But that’s a fight for another time.

    I would like to see the judge have more latitude. Each case is different and one size doesn’t all

  3. ymous

    This bill is really needed. Its a fairness and gender neutral issue. I agree, I wish divorce was rare but neither side should have a advantage regarding children. Gender neutrality should always be a goal in our courts and society as a whole. This bill is about the children and both parents being involved in there kids lives. Please support HB 1255 in the senate vote on monday or tuesday and call your senator. This bill will allow judges to award Co-Parenting and gives the judge more discretion in theses cases. It frees the judges hands to do whats in the childrens best interest.

  4. Ron

    As a long time family law attorney, I believe this bill is deeply flawed. Joint physical custody may be appropriate when both parents live in the same community. But unfortunately, this bill may cause a parent to live their life in poverty. Assume that a farm husband in Hyde County divorces his wife for whatever reason and that they have two small children. In order for the joint physical custody to work, the wife will have to remain living in the same school district as the father. Now what do you think her employment opportunites will be in that small county. Yet, if she decides to move to Sioux Falls in order to better her employment opportunites, she will be faced with having her ex-husband’s attorney argue that she should give up her custody because she is the one making it impossible for joint physical custody to work. If there is a presumption in place this argument will probably work. It doesn’t matter that she may not have wanted to be divorced in the first place. If she hopes to retain custody, she is stuck there.
    As it is now, a Judge can award joint physical custody if it is in the child’s best interest to do so. They, and not the legislature, are in the best position to make that determination.

  5. Les

    If joint physical custody can be awarded now Ron, why isn’t it being handed out, and, why would the legis think of bringing this bill forward?

  6. grudznick

    What the hell is coparenting? This sounds like a Steve Sibson attack on the normalicy of standard parenthood. I assure you that the Conservatives with Common Sense will not stand for Mr. Sibson misrepresenting our stance on this or other similar stuff.

  7. ymous

    With all due respect Ron your wrong on your law. A judge does not have the authority to award 50-50 physical custody. The judge has to award primary to one parent. This law alows the judge more lattitude not less. He/she has all the discretion they had before. But if one parent is disagreeing with the 50/50 presumption, they need to say why. That is all. The best interest of the kids standard still applies.

  8. ymous

    As a you stated your a long time family law attorney, you also have a bias to the current system as its very profitable to you. This is why the BAR with Barnett has chosen to fight this bill. Is it about money or the best interest of the children?

  9. raider

    Ron is correct- many of you are misinformed. For example, right now, a judge can award joint physical or legal custody.

    This law would actually create more fights which are terrible for the children and actually good for the lawyers. But every Judge and lawyer knows that splitting physical custody 50/50 is nearly always very bad for children. nearly every study on the subject confirms as much. You can’t just have children back and forth without one true home and not expect problems.

  10. ymous

    Raider you are incorrect, the judge does not have the authority to grant 50-50 physical. The state of SD is one of about 11 states that have these old fasion laws. This bill is about fairness and being treated equal in the system. Its about the best interest of the chidren which is to have 2 parents involved. If these studies exist then why didnt Tom Burnett present them in testimony to Health and Human Services? Because they dont exist, thats old and proven false data. The new data suggests that the more involvement by both parents the better the kids perform in school and happier they are. Discrimination is wrong no matter what form it takes and gender neutrality should be the goal of the courts.

    raider-If what your saying is “true”, then why has the Judiciary stayed out of this and hasnt come out against the bill as well as Social Services?

    1. raider

      I will say it one more time, a Judge has the ability, right now, to split physical custody 50/50 between the parents. In fact, many couples stipulate to this arrangement and Judges regularly approve such orders. If someone wants to disagree with these facts, please do so knowing that any lawyer or judge will vouch for what I say.

      This bill wants to create a presumption that a 50/50 arrangement is in the best interests of the children. That’s absurd. Often one parent is the clearly better parent (there quite a few severally mentally ill folks out there – alcoholics, abusers and losers too). Children also need consistency – shuttling kids between homes every week usually fails to do that – especially when many parents live far apart.

      Now bad parents are going to have more leverage in custody battles – children will be abused and neglected as a result because many, especially the poor, are not going to be able to hire an attorney to fight that presumption.

      1. ymous

        Raider I will say it one more time. You are wrong. The judge must choose a primary parent if it goes to court. I hope your not a lawyer. If you would have listened to the testimony a lady named Mary testified and gave the situation why the courts are not gender neutral. The data out there supports two parents involved (co-parenting) is in the best interest of the child. Your suit case argument is old and has no merit. Summers are usually split 50-50 and you know that. This bill is in the best interst of the children and both parents. The way it stands now there is a insentive for one paret to have/create conflict because then the say we cant get along and custody will be awarded to her. Along with control and the kids. The oposing side hear sure likes to put alot of nameless people as bad parents.The judge has more discession with this bill then he had.

        1. raider

          Give me your address and I will send you a court approved stipulation for 50/50 custody – I could send you dozens. You have no credibility.

          1. ymous

            Then why are you against this bill? Your just out to protect your revenue stream! All it does is start with both parents are equal until proven otherwise, its fair. If you can agree out of court, then yes, you are correct. But the way the table is now, there is a incentative for women to claim conflict. They then get the control and the kids. I have studied it and lived it. Parents and fairness matter.

  11. Laura

    These cases only come up because the parents cannot agree on their own to “shared parenting” agreements. In the majority of the cases domestic violence is involved and by an extraordinary margin that is violence committed by the husband or male in a nonmarital situation. There is no reason to change current law that makes unhealthy partners struggle to prove they are even fit parents, let alone aren’t/won’t use the contentiousness of the custody battle to harm their wife or girlfriend again. These cases are far more difficult for children; assuming 50/50 arrangements is not the answer to their best interests but it is the answer for the majority of fathers who were controlling husbands or partners during the course of the relationship.
    It is appalling that the legislature has let this facade for bad-fathers rights groups get this far.
    We had an interim task force on custody/visitation that came back with their best recommendations and bills were passed from that long, hard, slog. With the blink of Joel Arend’s eye you want to undo what more reasonable and moral minds put into place? If so, have another task force because the 2 little hearings at the Capitol this year don’t do justice to the reality of fighting for custody against abusive men are really like and the harm they do to children. Lucid minds will vote against this bill.

  12. Laura

    Btw, NONE of the hearings on this bill explored the rights of single mothers, it all was framed from the standpoint of marriage dissolutions and that simply is not reality for a large number of parents anymore. If you believe women are going to give 50/50 time to a man they not know save for a bad night’s mistake you’re opening a can of worms that most certainly is not dealt with in this bill. And remember, alot of the same legislators who voted for this bill in the House and Senate committee hearing are the same that would deny women their reproductive rights so that “mothers constitutional right to their relationship with the unborn child” are preserved. If you really believe in that weird mantra created for nefarious litigation purposes, you would be first in line to vote against this bill, too, right?

    1. Jeff J.

      Here, here for looking out for single PARENTS!!!!

      Laura, you don’t think a woman should GIVE a father the right too see their child because it was a one-night stand? Well, that right is not hers to give. Both parents, whether from a one-night stand or a 10 year marriage, have equal rights and responsiblities for that child.

      Let me guess though, that one-night stand father better PAY UP his child support right?

      I pray that you don’t and never will hold office. Your myopic view of the situation is exactly what keeps us from moving forward.

  13. ymous

    I think Laura’s words speak for themselves regarding an extreme and angry position. She sites no study’s to back up her position. Just anger and fear of what most states have determined to be in the best interest of the kids standard which is co parenting. Fair, equal and gender neutrality is all this bill is about. Giving the judges an additional option of co parenting while maintaining his discretion to determine whats is in the kids best interest. If one parent ia un fit, the judge can still restrict access to that parent. Laura’s attemt to instill fear by accusing faceless people of abuse is un fair to both parents. Thsi bill does nothing she claims but reminds the court to strive for gender neutrality and fairness into a system. Tht is all.

  14. Fairness and equality

    Am I on the other side of the looking glass? Leave it to Laura to compare child custody reform to pre-abortion counseling…

    Reflexive liberal progressivism is funny but dangerous…Now it?s time to have an adult conversation.

    First, under SDCL 25-4-45.5 a judge will still be able to consider domestic abuse when determining custody…furthermore, a history of domestic abuse creates a rebuttable presumption against custody.

    It’s dangerous and intellectually dishonest to say that joint physical custody presumptions exacerbate violent situations, especially given South Dakota’s statutory scheme with regard to the above cited law?a law that will stay in place with or without custody reform…that argument has been used in every state that wanted to implement fair and equal custody reform to no avail…it’s scare tactic from the supporters of a broken and failed system.

    Second, under 1255 a judge can bypass the joint physical presumption by determining that joint physical custody is not in the best interests of the child…read line 10 of the bill…please read the bill.

    Third, fairness and equality in making custody determinations is in the best interests of children, families and society. What if I wanted to make the argument that certain people are not responsible and shouldn’t have equal voting rights…oh wait…they tried that one in the South in the 60’s…and in the mid 1800’s…didn’t turn out so well.

    The only people that are opposed to fairness and equality in making custody determinations are the attorneys and others who profit from a high-conflict broken system which creates more billable hours and less stability for children.

    3/4 of America, 37 states, have some form or fashion of joint physical custody presumptions…why is South Dakota so special that it won’t work here…I’m disappointed with Laura’s provincial attitude towards parenting…it beckons back to an era where men worked and women took care of the kids…is that where Laura wants to take us?

    Joint physical custody is in the best interests of children…children without two parents are:

    ?Twice as likely to drop out of school as those from intact homes
    ?Three times as apt to have a baby out of wedlock
    ?Five-fold more likely to be in poverty
    ?12 times more apt to be incarcerated

    Why have the Judiciary and the Executive branch stayed on the sidelines for this entire debate? For the last 10 years they have always opposed legislation like this…let’s face it, the judiciary has seen the current system now for decades and is fed up with it. If it’s such a bad law, why hasn’t the Chief Justice deployed the UJS lobbyist “blue badger” to help kill this legislation?

    1255 still allows a judge to prevent unfit parents from having custody….again, read the bill. If it didn’t the UJS lobbyists would have been in overdrive to kill the bill.

    Additionally, the bill contains a primary residence requirement…this completely eliminates the whole suitcase kid arguments…again, read the bill.

    This bill represents reasonable first step towards bringing non-custodial parents into the lives of their children. Unfortunately, there are people out there who are going to perpetuate conflict to meet their own demands…this bill will work to reduce conflict, disincentivizes acrimony and create the structural framework for future custody reform that places the child first, the attorneys last and brings parents back to the table to do what’s in the best interest of the child…and not the system.

  15. Name

    The way the bill is worded, the judge is required to look at the best interest of the child. Looking at the best interest of the child means keeping kids out of the hands of abusers, that is something all reasonable people can agree upon. the bill is written to allow this. I just read the section of law fairness and equality posted that states the judge is required to consider abuse. The judge is already required by state law to take this into effect and HB 1255 does not change that. Saying otherwise is a red herring arguement.

    It looks to me like the intent of the bill is to allow children to benefits from interaction with both parents, provided each parent is fit. The current system reduces one parent (mom or dad) to Disneyland parent status. Kids benefit from being with mom and dad in the normal ups and downs of life, not just vacation or over the weekend.

    This sounds pretty reasonable to me.

  16. Electrifying South Dakota

    There is plenty of hyperbole in the conversations above, but there are also pearls of wisdom strewn amongst the various observations. It is safe to say that not all divorces are the same. One divorce might entail a stipulated joint legal custody agreement, with primary physical custody being awarded to either parent, and a visitation schedule that is consistent with the SD Supreme Court’s Parenting Time Guidelines, while another divorce might be a bar brawl. It really just depends upon the parties, and in these types of matters I pray that 1) the parties can act like adults, 2) the parties can focus their attention on not how much they hate the other person, but how much they love their children, 3) that the lawyers and judges can reasonably work towards the best interests of the children, and 4) that the children’s best interests are indeed met.

  17. Jeff J.

    Whether it’s written into law or not, the fact is there has been a presumption for decades that the “best interests of the child” means custody goes to the mother. This is flat out discrimination and does not belong here in the 21st century. Growing up I saw many of my peers living with bad mothers and who didn’t see enough of their decent fathers. It was and is ridiculous. If this law requires that we start with the presumption that both parents are equally able to provide for the child, then that’s a step in the right direction.

    Note that it simply starts with that presumption. If that isn’t the case in a particular situation, then that will be explored and discovered. If there is abuse, neglect, simply a bad environment, etc, it will come out and the bad parent’s custodial role will be reduced.

    I’ve just about HAD IT with people like Laura always jumping in and trashing fathers. The vast majority of fathers out there are good men doing a good job.

  18. Ron

    Before you accuse people of misstating the law I suggest you read it. Joint physical custody is done regularly in our circuit. You come across as a person who believes he was done wrong by the court system. Hence your cheap childish comment about me trying to keep the money flowing. You are wrong. Nothing more anybody can say.

  19. Ron

    And to you Les, courts should never “hand” something out. That is not how justice is handled. The courts take their responsibility seriously. If any of you believe that the father automatically is at a disadvantage, you are mistaken. There are legitimate reasons for a primary custodial parent and there are legitimate reasons for shared phsical custody, but “handing” out a result is not one of those reasons.

  20. ymous

    Ron- I refuse to dive into name calling and rude debate. I must have struck a nerve of truth to your intentions and you agree with discrimination. There must be a custodial parent, that is the law if a judge is decides the case. I have read the law and much case law. Our laws are old and out dated and incourages discrimination based on sex. If there is a custodial parent that is not true co parenting. Read what I said above. Be happy, the bill failed and your income stream is protected and dads can keep paying your kind.

  21. Les

    Gotcha Ron, Federal Prison Sentences Handed Down to Robert “Bob” Jones and Patrick Woods in El Paso Corruption Investigation……….Petit Family ? Death Sentence Handed Down…….Topekans outraged by sentence judge handed down to child sex offender……we hand down justice, we don’t hand it out. Cool. I’m glad it is that simple and our courts are that infallible.

  22. ymous

    Sorry Ron I better correct myself so I dont get sued by you. I feel you seem to be agreeing with discriminating against fathers. One has to be careful with attorneys.

  23. Ron

    Aw Les.
    You got me. I guess I wasn’t smart enough to equate a child custody decision to your criminal convictions examples.

  24. Ron

    Please read SDCL 25-5-7.1.
    “In any custody dispute between parents, the court may order joint legal custody…. If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include primary phyical residence… which the court finds unique to a particular family or int he best intereste of the child”
    So, the law clearly provides that a judge can divide the primary physical residence and in fact they frequently do so.

  25. ymous

    There still has to be a primary physical award which is what I said all along Ron. Courts rarrely and Ive never hurd it happenening that a judge orders joint phyysical. The parents must agree out of court but all a mother has to do is say we cant co parent ad she gets physical cutody of the kids, control, and child support. Ive just covered the three incentatives for women to claim conflict (which attorneys advise them to do). Its only when a women agrees to it. Are you a attorney? If not ask one.

  26. Name

    This is an interesting thread. As everyone should know, this bill died in the Senate. In the interest of full disclosure, I will start this by stating I am an attorney and I am opposed to this bill. If you think that makes me bias based on profit motive, I guess that is your call. That said, I want to try to clear up some things in an effort to educate.

    First, it is absolutely true that if the parties agree to joint phyiscal custody, and the court will almost always concur.

    Second, there is a difference between joint legal custody and joint phyiscal custody. When most people think of custody, they are addressing joint phyiscal custody. Joint legal custody is often granted, as it allows for both parents to be involved in major decisions, but does not give the right for equal time. SDCL 25-5-7.1 does not really address shared parenting.

    Lastly, for better or worse, the proponents of this bill are correct that it is difficult to get a court to order shared parenting. The rule regarding this is not found in statute, but is found in caselaw. Statute requires that courts look to the “best interests” of a child when making a decision, and use a variety of factors to consider. One of those factors, and arguably the most important, is stability. There is caselaw that states that it is generally not in the best interests of children to award shared parenting, because it does not create a stable environment. What I will call the “seminal modern case” on this is Jasper v. Jasper, 351 N.W.2d 114 (1984). There, the court came to the conclusion the trial court “must resist the temptation to take the path of least resistance and award dominant custody to one or the other of two equally desirving parents.” Current cases tend to reflect that mindset, and in all reality, it is the proper decision. When shared parenting is ordered and two people cannot agree to it, it is a reciept for disaster, and it always ends up costing everyone tons of attorney fees to litigate the disputes that arise.

    On the other hand, although it is rare, I have personally had a Court order shared parenting in a disputed case. The key is always the best interest of the child, and if a party can show why shared parenting is particularly good in a situation, a trial court can do it.

    I hope this makes sense. I did not do it to try to convince anyone one way or the other, as there are legitimate concerns on both sides of this debate. On the otherhand, someone reading this should have a answer on what the law really is.

  27. ymous

    Thank-you very honest and respectful post. You are correct in your citing of the law and the award of co-parenting is very very very rare but one parent must still be primary and that is usually arrived at by the “nuturing” language which is a code word for gender discrimination in my opinion. There is much new data coming out one is a newly released report

    AND CHILDREN?S PHYSICAL HEALTH Final draft 3/8/2011
    Please do not quote until copyedited version
    To appear in
    Kuehnle, K. & Drozd, L. (Eds.) Parenting Plan Evaluations:
    Applied Research for the Family Court. Oxford University

    Please read this as it may change your opinion if what your truly looking out for the childs best interest. But comparing SD fathers to Charlie Scheen on the Senate floor does nothing but lower the discussion to child like name calling and character assasination (the senator from Mitchell SD Mike Valley). My opinion is the SD BAR should stay out of it, it looks bad as they do have a financial interest and Tom Barnett did a dis-service to a needed and respected profession with all do respect. Misrepresenting the bill and claiming it will increase domestic violence has no grounds and is an assault on both parents. Its just not true.


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