SIOUX FALLS, S.D. - Divorce or separation isn’t easy for anyone - especially children. During such a stressful time in a family’s life, it’s important for parents to pay particular attention to the needs of their children.
We know this intuitively, and North Dakota law recognizes it explicitly. When making child custody decisions in disputed cases, North Dakota courts currently are required to examine each particular case according to one overarching standard: the best interests of the child.
According to the U.S. Children’s Bureau, “best interests” determinations are “generally made by considering a number of factors related to the child’s circumstances and the parent or caregiver’s circumstances and capacity to parent.” Under this standard, the child’s safety and well-being is the most important concern.
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But this could all change if voters approve Measure 6 on the November ballot.
If approved, Measure 6 would significantly change the way courts handle custody disputes in North Dakota. Instead of the current law, the measure would create a legal presumption that each parent is a fit parent, and therefore both parents are “entitled to be awarded equal parental rights and responsibilities.”
On its face, the measure sounds innocuous - perhaps even beneficial. But closer consideration reveals the reality Measure 6 would create: a legal system in which courts are beholden first to the parent’s wishes and desires, and only after that to what is best for the children.
The current law in North Dakota directs the court to consider and evaluate all factors affecting the best interests and welfare of the child. This law specifically lists 13 factors that a “best interest of the child” determination should include. Among these are:
- The child’s developmental needs and the ability of each parent to meet those needs, both in the present and the future;
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
- The love, affection and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection and guidance;
- The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined by law; and
- Evidence of domestic violence.
If Measure 6 becomes law, all of these factors and the crucial role they play in determining the best interests of the child in a custody dispute would take a backseat to the one-size-fits-most approach of the equal parenting presumption.
Supporters of the measure will tell you their proposal takes into account that some parents aren’t fit, and that the law let courts decide against 50/50 custody in those cases. What they won’t tell you is just how difficult it is to prove a parent is unfit in court - especially without the help of an attorney.
When a parent can’t overcome this heavy burden and prove the other is unfit, the court’s hands are tied - even if the judge suspects there has been domestic violence or neglect, or the court has serious doubts about a parent’s ability to provide a stable home environment.
In these cases, regardless of how the court views the case through these “best interests of the child” factors, it will be required to grant custody to each parent of the child about half the time.
The American Civil Liberties Union of North Dakota believes that state involvement in disputes concerning dissolution of families implicates the civil liberties of both adults and children. We believe that disputes over the care and custody of children should be resolved by courts according to the “best interest of the child” standard.
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These cases involve highly fact-specific situations and must be resolved on a case by case basis, giving courts the freedom to consider all relevant factors and how they impact the most important person at stake in custody disputes - the child.
In an ideal world, all children would have two loving, supporting, involved parents. But we recognize the sad reality that this is sometimes not the case. In those situations, courts need the freedom to do what is best for the child.
For these reasons, we oppose Measure 6 and urge North Dakotans to do the same.
Skarin is policy director of the American Civil Liberties Union of North Dakota and the American Civil Liberties Union of South Dakota.
