Three numbers that relate to the 2014 election and Measure 6, the Shared Parenting Initiative: 62.09, 37.91 and zero. The first is the percentage of North Dakotans who voted against a presumption of shared parenting. The second represents those who voted for it. The last is the number of legislative districts in which Measure 6 had more "yes" than "no" votes.
You would be hard-pressed to find a clearer rejection of a presumption of equal time by our citizens. Yet, on Tuesday, the North Dakota House overwhelmingly passed HB 1392, the Shared Parenting Bill. Supporters, many of whom are related to Fathers Rights Organizations, will tell you that HB 1392 is not like Measure 6, or that it is a "watered-down version." A comparison of the two shows the opposite.
Measure 6 created a presumption of equal time with each parent unless a parent was found unfit. HB 1392 states that it is presumed that equal parenting time and residential responsibility promotes the best interests of a child. Such a presumption may only be overcome if a court explains why it did not award equal time. It is the same presumption wrapped in different language.
A presumption is a mandatory starting point for a court. If our goal is to keep families out of the courthouse, HB 1392 does the opposite. The court is the only place a parent can go to overcome a presumption. Not only that, the burden of proof is no longer equal between the parents. Instead, the parent opposing the presumption bears that burden.
Here is another number: 110. That is the number often used by supporters of shared parenting when they try to push presumptions like this in legislatures. While there is no dispute that 110 social scientists agree shared parenting is in a child's best interests, shared parenting does not mean equal time. In fact, not one study states that equal time is required to meet the best interests of a child. Rather, shared parenting can be anything from 35 percent or more with a child. HB 1392 tries to address this discrepancy, but it fails miserably. It declares that 35 percent is equal. In doing so, it causes a direct conflict with the definitions in the child support laws and the language in the statute itself. It tries to claim that the best interests are still the focus, but those factors, which were designed to be weighed thoughtfully by the court, now must be used as a battering ram to knock down a presumption.
Over the past several months, the North Dakota Family Law Task Force has been tackling an alternative. Its subcommittee talked with experts on shared parenting; it reviewed studies and articles; it tried to draft legislation for this session. What the subcommittee found is that this is a dense area with many interconnected pieces to be addressed and not one that should be done piecemeal. Yet, that is what HB 1392 is: a piecemeal approach to a larger discussion.
I will leave you with two final numbers: Zero and zero. The first zero represents the number of states that have a presumption of equal parenting in their laws. The second zero represents the number of social scientists that argue for a fifty-fifty presumption like this one across the board. This presumption wasn't right for North Dakota families two years ago, and it is not right now.
McLean is an attorney at Gjesdahl Law, P.C. in Fargo