Matt Evans: It's Time To Pass The Shared Parenting Law


The good news from this week is that North Dakota Parental Rights Initiative will be on the ballot in November.

The measure would create a legal presumption that each parent in a child custody case is fit to parent, unless proven otherwise, and that therefore, each parent in a custody case would receive equal parental rights, responsibilities, etc.

You can read more about the measure’s background here:

Previous attempts at this sort of law change have been narrowly defeated in the past in North Dakota. The opposition lobbying has historically emerged from the legal industry – which I suppose has an incentive to make sure nothing ever goes smoothly when there are perfectly good lawyers available to make it go badly.

Basically, if the initiative passes, the law of the land will say that Dads aren’t automatically the losing party in child custody battles.

The history of child custody in the west is interesting. In the US, up until the 19th century, fathers tended to retain custody of children, as they were seen to be better able to financially secure the child’s future. In the early 19th century, opinion was shifting, and in 1839, the Talfoud Act codified in law the “tender years doctrine”, which stated, in effect, that mothers are especially good at caring for young children, and therefore custody of young children ought to default to the mothers.

The custody preference expressed in the Talfoud Act was meant to be temporary in nature (where have we heard that before?); it allowed that the custody arrangement that met the child’s needs best could change over time. Sadly, that subtlety was lost over time, and the court’s opinion shifted to a doctrine more readily described as “the mom always wins unless there is video of her putting meth in the kids breakfast.”

The data seems to suggest that the legacy of the tender years doctrine lives on. Mothers win sole custody nearly ten times as often as fathers do. The majority of single parent families in the US are mother-led. Everyone agrees that fatherlessness is a huge social dysfunction in our society. Women increasingly have full time jobs outside the house, and, increasingly, glass ceilings that remain for women are being shattered, while men continue to succeed in roles that have traditionally been filled by women, whether we’re talking about stay at home dads, male nurses, male primary school teachers, etc.

The gender roles of our past seem to be vanishing everywhere except child custody.

True, not all custody battles involve two equally fit parents coming to the court room. This initiative doesn’t somehow dump the children on a lousy dad.

Furthermore, many dads don’t bother to contest custody at all. This initiative doesn’t apply to them either.

Passing this initiative won’t equalize the number of male and female sole-custody households. That is not what it does. This initiative is not about looking at a social outcome (the distribution of parental custody by gender) and presuming that there must be a market problem that needs correction via onerous or unspecified means (like the various gender-based wage acts do). After all, there is no private market here. Judges, as representatives of government, are deciding custody. That means their impartiality must be unimpeachable.

This initiative is also not about noticing that Dads aren’t winning custody battles often enough, and therefore we’re going to start handing out more sole-custody judgements to Dads (like Affirmative Action and other quota-based systems). The law specifies no target outcome.

What this initiative will do is to give the Dads who want to stay involved with their kids a fighting chance.

This initiative demands that the court should view mothers and fathers as equally suitable parents for the purposes of child custody — unless evidence of parental unfitness is introduced. It reverses the last 180 years of sexist child custody policy in the US.

If you want to call this a Civil Rights Act for Dads, that’s fine with me.

Finally, you’re going to hear from people who are against this initiative. They will predict various flavors of the sky falling if this passes. If you like, you may point out to them that other states now have similar laws on the books, and the sky is still firmly affixed above the ground in those states.

These laws appear to be working – slowly. While the number of fathers with sole custody isn’t increasing, the number of fathers who have been awarded joint or shared custody has been.

You may also hear opponents saying that the rights of the child are being made subservient to the wishes of the parents. This initiative retains the current wording of state law that stipulates that the well being of the child remains the primary factor in awarding custody. That doesn’t change. Furthermore, study after study has shown is that, absent extenuating circumstances like domestic violence or drug use (which are also specific disclaimers of parental fitness in state law), children are best served by having both of their parents involved in their upbringing.

It’s time to stand up for the rights of dads in our state, and in so doing, help our kids, and hopefully frustrate a few lawyers.