Jason McLean: Shared Parenting Initiative Is Bad For Children


For over 11 years, I have been a family law attorney in Minnesota and North Dakota. I handle adoptions, child support, divorces, and paternity cases. These cases can sometimes be contentious. Over the years, I have helped many families avoid prolonged and agonizing battles. Many believe these battles dominate our court system. However, the reality is quite different: For example, I average only one contested trial or evidentiary hearing per year. All my other cases resolve respectfully, by agreement.

I have represented men that received primary residential responsibility (custody) of their children and mothers who have lost it. I have seen parents have the “light bulb moment” where they realize that the harm of the fight is greater than the gain of the outcome. I have seen families heal and move forward in healthy relationships, despite the pressures of divorce and division. I have seen all of this in a current system that makes the best interests of children its paramount concern.

The Initiative on the November ballot would impose a presumption that equal residential responsibility is in the child’s best interest…in every case, no matter the individual circumstances. It proposes that the “presumption of fitness” can only be overcome by “clear and convincing evidence.” However, it does not define “fitness,” nor identify what evidence would overcome that presumption. Current law, and mandatory mediation requirements, foster autonomy and cooperation which is in the bests interests of the children. The initiative does the exact opposite.

Because of the higher legal burden a presumption creates, a parent seeking primary care of the child will have no choice but to throw the proverbial “kitchen sink” at the other parent. This will occur in Court, on an open record, for all to see, including children, extended families, and friends. This won’t serve a child’s best interests.

One of the hallmarks of North Dakota’s existing law is that the best interests of the child trump the wishes and desires of a parent. Unlike some states, the North Dakota district court is not required to weigh a parent’s desire in making its final decision. In fact, our Supreme Court specifically reminds the district courts to focus on what is best for the child, not what is best for the parent.

Thus, our law provides 13 “best interest factors” for the trial court to consider. These factors run the gamut from examining stability of a parent’s proposed home to whether a parent has a health issue that affects the ability to parent. Assessing all of a child’s circumstances allow Court’ to tailor custodial arrangements specific to an individual child’s needs. The SPI’s cookie-cutter approach wrongly assumes one arrangement is good enough for every child.

Our law is gender-neutral. There is not a presumption that allows the award of a child to the mother over the father. Each parent comes in on equal footing.

Where the focus of our law is on the child’s best interests, its backbone is maintaining the stability and continuity for the child. These cases are not about gender; the cases are about which parent can provide the most stability and best care for a child. Admittedly, making this determination can be difficult for a court. Fortunately, the courts do not have to do so in most cases.

In 2008, North Dakota launched a mediation pilot program with the goal of minimizing family conflicts and encouraging shared decision-making. The program became mandatory, statewide, in 2011. Its results have been nothing less than remarkable. According to the Final Evaluation Report of the Pilot Program, issued July 30, 2013:

  • 71 percent of cases that were in the mediation program were resolved in mediation or shortly thereafter.
  • The program saw a rescission rate of only 10 percent.
  • Participants regularly reported that they learned new methods of dispute resolution or something about themselves or their spouses in mediation.
  • 87 percent of the participants were satisfied with the mediation program.
  • 93 percent stated that they felt the process was fair to them.
  • Over 95 percent of the participants stated that they felt respected during the process, that the mediator cared about their case, and that they were treated equally.
  • Over 50 percent of the participants had median incomes of less than $3,000 per month.
  • These results were achieved voluntarily, without a presumption for shared time.

Ironically, one of the aims of the supporters of the initiative is to target people like me. They often describe family law attorneys as part of the “divorce industry” or “Big Divorce.” These supporters (one of whom approached me on a street corner with a petition) see attorneys as vultures, looking to make a buck off the misery of others. If that were the case, I’d promote this initiative from the highest mountain.
If there was ever a certainty, it’s that the initiative will lead to more litigation, more costs, and more fees for the lawyers. It will promote continual litigation and a “take no prisoners” approach. All the while, the only casualties will be those the initiative supporters claim to protect: the children. Once parents throw stones, they can’t be taken back. The irreparable harm will be forever done.

There are myriad issues to discuss with shared parenting time— for example, the artificial nature of a 50-50 division of time or the lack of a “home base” for younger children—but it is the prolonged family strife that should give pause. So, when you are discussing the day’s events with friends or researching the issues for the November election, keep in mind that families and children do best when they work together to find solutions, not when they are forced into a one-size-fits-all.