FARGO-We've spent time in this space discussing how the North Dakota Legislature is ignoring the will of the people by carving up an initiated measure legalizing medical marijuana that was approved by nearly 64 percent of the voters. The point is not medical marijuana. How you feel about that should be irrelevant. The point is lawmakers are disregarding the voice of the people, who overwhelmingly told state government they wanted something done a certain way.
Tweaks are OK. Wholesale re-writing is not.
Ignoring the will of the people can work in reverse, too. That would be the case with House Bill 1392, which revives the specter of shared parenting in North Dakota.
If that phrase, shared parenting, sounds familiar, that's because voters have twice in the past decade rejected shared parenting measures at the ballot box. Both times, they were rejected resoundingly. This time, some of the same advocates behind the initiatives are trying to work the Legislature to get their wishes.
Shared parenting is the concept of both parents having equal time and responsibility determinations in child custody or divorce arrangements. The basic idea is that both parents are presumed fit to care for the child, both get the child 50 percent of the time and both have an equal say in all decisions regarding the child.
Typically, child custody arrangements give one parent sole custody (usually the mother) and the other parent (usually the father) visitation rights. There are exceptions when couples decide on joint custody or other non-traditional arrangements.
Shared parenting has become a rallying point for "dad's rights" or "men's rights" groups who believe they've been short-changed in custody proceedings. There's been a push for shared parenting in recent years in many states, without much success. Generally, opponents of shared parenting believe the effort is more about satisfying aggrieved dads than what's good for children and that splitting everything 50-50-especially custody time and decision-making-is arbitrary and often unworkable.
Shared parenting backers succeeded in getting Measure 6 on the North Dakota ballot in 2014. It called for "a presumption that each parent is a fit parent and entitled to be awarded equal parental rights and responsibilities by a court unless there is clear and convincing evidence to the contrary."
It was defeated by a margin of 62-38 percent. Not one legislative district voted for Measure 6 and the closest votes were approximately 55-45 against in districts 9 (Rollette County) and 18 (Grand Forks County).
Yet with essentially the same wording on HB 1392, shared parenting is making its way through the Legislature. It was introduced by Rep. Tom Kading of Fargo, who says his bill corrects some of the problems voters had with Measure 6.
"We really strived to make this bill different than Measure 6 and tried to address the problems in Measure 6," he said.
The problem is, HB 1392 reads an awful lot like Measure 6-in many cases, exactly like it-and only appears to add some bells and whistles. The bill states that each parent has the right to have their child "a significant amount of time which is equal to or as close to fifty percent of the time" as possible and not "less than thirty-five percent of the time."
Another section of the bill states "there is a presumption that each parent is fit to care for the child" (sound familiar?) and that unless there is "clear and convincing evidence" (sound familiar?) to rebut equal custody, each parent shall be given "equal decisionmaking responsibility and equal parenting time and residential responsibility."
In other words, shared parenting split with 50-50 responsibility. Exactly what voters rejected big-time a couple of years ago.
Fargo lawyer Jason McLean says "the heartbeat of this bill is exactly the same as the heartbeat of Measure 6. The effects of this bill on North Dakota families could be catastrophic."
McLean opposed Measure 6 and is co-chair of the Family Law Task Force that was formed after its defeat. The task force was put together by the State Bar Association to address the issues raised by Measure 6. He says Kading's bill is retroactive, meaning the state's court system would be flooded with thousands of new cases.
"Basically, any case with a minor child would be subject to immediate reopening and adjustment under the law," McLean said.
McLean cites numerous other problems with the bill, from child support changes to the creation of the 35 percent custody time "floor" regardless of situation to its definition of domestic violence to its emphasis on parental rights instead children's best interests.
"This bill would take the best interests of the children completely out of the equation," McLean said. "Under HB 1392, the presumption of equal time applies unless the parents live more than 50 miles apart. That means that a child with a parent living in Hillsboro and one living in Fargo would be forced into a 50-50 distribution of time. If those same parents lived in Devils Lake and Rugby, they would not have that same treatment. Rugby and Devils Lake are 58.4 miles apart. Children are treated differently based upon simple geography."
Kading acknowledges flaws in the 50-mile portion of the bill, as well as other areas, and says he's willing to compromise. But he cites studies that say single-parent homes lead to more suicide, drug use, drop outs, behavioral problems and homelessness for young people. Kading dismisses Measure 6's defeat, saying there is support for making changes to child custody law.
"The intent was to get a bill out there to find a solution, to get both parents involved in their child's life," Kading said. "The point really is to give both parents some influence in the kid's life."
McLean is skeptical. He said supporters of the bill include Bismarck attorney Arnold Fleck and Minot's Charles Tuttle, both strong backers of Measure 6. McLean expects the House Judiciary Committee to give a "do-pass" recommendation to HB 1392.
"It appears the people's elected representatives, in the body that is supposed to represent the will of the people, is listening to the few and not the many," McLean said.