North Dakota Debates Shared Parenting Law

North Dakota's general election in November will probably include a ballot on a Shared Parenting Initiative, a measure that would make joint child custody the default option in cases of divorce or separation unless one parent was proven to be unfit. A petition for SPI's inclusion has the required signatures and is currently being verified.

But the fact that both state and federal officials have come out against the SPI may cause its defeat.

Tom Dennis, who edits the Grand Forks Herald's editorial page, used to believe that the SPI would pass by a narrow margin. Now, after official pronouncements, he believes its prospects are "markedly unfavorable."

Are authorities providing necessary information to the voting public or are they violating the law by trying to influence an election that impacts their own jobs? And just how reliable is the information they provide?

Before examining the specifics in North Dakota, background on this explosive issue is required.

Shared parenting is a child custody arrangement by which a child's care, including physical custody, is equally or substantially shared between estranged parents. The arrangement rests on two concepts: children have a right to know both parents; and, every responsible parent has a right to know his or her child. In practical effect, it transfers decision-making and power from state authorities to parents.

Across America, states are grappling with family court systems that have been accused of creating more problems than they solve. They are also accused of harming children through bias against fathers who are denied custody or reasonable visitation even if they pay high child support.

The 'presumption of shared custody' is commonly offered as a solution. This means family courts should be presume that each parent has an equal claim to parenting a child unless there is evidence that one of them is irresponsible.

According to calculations from the best available data, shared parenting already accounts for approximately 20 percent of current custody arrangements. (U.S. Census, America's Families and Living Arrangements 2004, Current Population Survey, March 2005. Table FG-6.) That percentage includes private and uncontested custodyarrangements, which constitute the majority.

Controversy about shared custody arises in disputed cases that proceed to family court. In the last few years, about a dozen states have adopted policies through which their family courts encourage 'shared parenting'.

In other states, however, critics strongly oppose the concept. Of the North Dakota initiative, for example, the liberal feminist Trish Wilson wrote, "Most parents do not choose shared parenting because they recognize how hard it would be on them and especially on their children…the mother had been the primary caregiver… That is why mothers most often get sole custody. It is not because of bias against dads in court."

In response, shared parenting advocates cite studies that show children do far better when cared for by both parents.

Whatever else is true about the foregoing argument, one thing is clear: both sides are arguing for 'the good of the child'. The same is not necessarily true of officials who are speaking out against the SPI in North Dakota.

The proximate cause of the SPI's reduced prospects was an op-ed in the Herald by Carol Olson, executive director of the North Dakota Department of Human Services. Olson stated, "If the measures pass, the state could not certify that its programs meet federal requirements, and North Dakota would lose about $71 million in federal money for those programs during the 2007-2009 biennium." (The Initiative includes more than one measure; the support regulations basing support on a child's needs are particularly in dispute.)

Olsen cited a letter to Sen. Tom Fischer from federal Department of Health and Human Services regional administrator Thomas Sullivan. "Due to the gravity of the consequences that may result, we urge you to take whatever steps are necessary to ensure that initiated measures are not enacted that would render the state's statutes out of compliance with the federal law." (Emphasis added.)

SPI advocates have questioned the propriety of officials taking a stand on an election matter and claim Sullivan and Olsen's claims about the impact of the legislation are actually inaccurate. For one thing, they claim that the wrong law is being referenced; it should be federal code Title 45, Volume 2, Section 302.56. Moreover, other states have adopted similar measures without losing a cent of federal funds. Indeed, no state has lost funding due to such a shared parenting measure.

Stephen Baskerville, president of the American Coalition for Fathers and Children, says that, even if they were to be correct in their interpretation of law, "Under 45 CFR 305.61, no penalty can be imposed for noncompliance without a notice. At a minimum, the state would have a year for corrective action before losing any federal funds. Thereafter, the penalties are 1 to 2 percent for the first finding, 2 to 3 percent for the second and 3 to 5 percent for subsequent findings."

The battle is engaged. Perhaps in another reversal of opinion, Grand Forks Herald editorial page recently had a 'shared parenting day' in which it featured four editorials in favor of the SPI and none opposed.

Those interested in family law should watch North Dakota's November election closely. It is likely to be a bellwether for the future of child custody in other states.

Wendy McElroy is the editor of and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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