In a recent letter to the editor attorney Jason McLean, a divorce lawyer and opponent to reforming our state’s child custody laws, suggested that new shared parenting legislation under consideration in Bismarck is just like 2014’s shared parenting ballot measure.
That would be a devastating and persuasive argument, if true, because Measure 6 on the 2014 ballot failed with over 62 percent of the voting electorate in opposition.
Only the sponsor of HB1392 – Rep. Tom Kading (R-Fargo) who is also an attorney – says there are key difference between the two proposals.
I had Kading on my radio show yesterday and asked him to explain. He listed two substantial differences:
- Measure 6 defined shared parenting as an exact 50/50 split in parenting time. HB1392 defines it as anything more than 35/65 split.
- Measure 6 required “clear and unconvincing evidence” standard to prove a parent unfit while HB1392 requires a much lower “preponderance of the evidence” standard.
Another key part of HB1392 is that a judge deciding that the “preponderance of evidence” standard has been met to declare a parent unfit must document the reasoning which led him (or her) to that conclusion.
In 2014 voters “said no to a problematic ballot measure,” Kading told me during our interview. His legislation intends to address the flaws in the measure by proposing a less rigid parenting split and a lower bar for denying shared parenting. He noted that judges would still have “a lot of discretion under the best interests of the child factor” to make the right decision.
[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]In 2014 voters “said no to a problematic ballot measure,” Kading told me during our interview.[/mks_pullquote]
So far Kading seems to have mollified at least some of the detractors, despite McLean’s insistence that the bill and the measure are one in the same. Kading noted that his bill was passed out of committee on a 15-0 vote. The bill also passed on the House floor last week by a lopsided 71-21 margin.
Interestingly the State Bar Association of North Dakota, which has spent tens of thousands of dollars opposing shared parenting ballot measures in years past, isn’t opposing Kading’s bill per their crossover break update.
I asked Kading why the concept of shared parenting draws such hostility from divorce industry lawyers like McLean. “Change is difficult whether it’s the plumbing industry or the legal industry,” he told me.
Here’s the full audio of our interview:
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