A proposal to make equal parenting time the starting point for child custody cases is back on the table.
Though voters rejected a version of the "shared parenting" bill twice in the past 12 years, six GOP legislators brought a similar measure to the Capitol this session. A version of HB1392 passed the House in a vote of 71 to 21 in February.
The bill establishes 35 to 50 percent of time spent with each parent as the presumptive split for kids in a custody case. That means equal time with each parent is assumed to be what is best for the child. Variation requires parents to show a judge by preponderance of the evidence that something else would be in the child's best interest.
The bill also recommends a study to examine how the new law plays out.
Proponents of the bill — including dads, a grandma, an aunt and a few lawyers — said it is necessary to encourage judges to place kids with both parents, a situation some social scientific research indicates is better.
They insist the bill is different enough from a rejected 2014 measure, because it is less rigid, with a lower burden of proof.
"Measure six was a parents' rights bill. Thirteen-ninety-two is a children's rights bill," said sponsor Rep. Tom Kading, R-Fargo.
Opposition came from representatives of the State Bar Association of North Dakota, which opposed the ballot measure in 2014.
Fargo family law attorney Jason McLean, co-chair of the association's family law task force, argued the equal presumption would win out too often, because it would take a lot of evidence and a hearing to overturn. Judges would lack appropriate guidance on deciding otherwise and the new law may bring more families back to court, he said.
"The presumption will control everything. Presumptions are designed to control everything," McLean said in an interview after the hearing.
But in a move that surprised a key opponent, McLean offered an amended version of the bill that would define shared parenting in the statute and spell it out as an option for judges to consider. The amended law also instructs judges to identify the reasons for their custody decisions.
McLean said the proposal came out of discussions with experts at the task force, which was created after the 2014 election. He said many judges don't understand that shared parenting is an alternative and resort to standard arrangements, like every other weekend.
Arnie Fleck, a Bismarck attorney who strongly supports the bill, sued the bar association for funding advocacy opposing the 2014 measure and recently criticized the task force as stacked with shared parenting opponents, said he was "impressed" the state bar gave a proposal back.
"It's the first step that needs to be taken," Fleck said. He still believes the presumption model is best and believes McLean misled the committee about how easy it is to change custody arrangements.
Measures related to shared parenting are being considered in 25 other states this year, Fleck said. But no other state has this presumption written into the law, according to McLean.
Andy Doll, a middle-aged West Fargo man with long and wild black hair and two daughters, was one of several dads to speak at the hearing about trying to get custody of his kids. He said he spent thousands of dollars on legal fees, to find himself now with just 71 days a year with his kids.
He said the current system scares parents and pits them against each other.
"I've lost tens of thousands of dollars trying to get some sort of equal parenting time," Doll said. "I'm less than a part-time dad."