Fresh off a defeat in the South Dakota Senate, advocates of “shared parenting” plan to reach out to opponents and try to find a compromise on the hot-button issue before next year’s legislative session.
A bill that would have made joint physical custody of children the default in divorce cases was defeated Thursday after opponents argued it would hurt children.
“If we pass this today, we’re going away from what’s in the best interests of the child, and we’re starting to go back the other way to what’s in the best interests of the parents,” said Sen. Mike Vehle, R-Mitchell.
Currently, judges can order joint physical custody of children if he or she determines it’s in the best interests of the child. Critics said that was enough, while advocates for shared parenting said the law should encourage both parents to stay in their children’s lives.
“If there is a disagreement, why do we automatically assume we’re going to exclude that one parent from their child’s life, except for a few days a month?” said Sen. Phyllis Heineman, R-Sioux Falls.
But despite emails from hundreds of shared parenting advocates around the state, the Senate rejected the shared parenting bill, Senate Bill 125, by a 21-13 vote.
Sen. Dan Lederman, R-Dakota Dunes, said he believes a compromise can be reached to satisfy some of the objections.
“I think we could modify parts of the bill to make it more acceptable to members of the Senate and Legislature,” Lederman said after the vote. “I hope to have those discussions with the main opponents outside of session to find some type of legislation we can all agree on.”
Those differences include disagreements about what’s actually best for children.
Opponents of shared parenting emphasize the differences in situations for families, and say courts shouldn’t presume any one outcome is going to be generally best.
“The process we have currently in place, it treats each child as a case-by-case,” said Sen. Jean Hunhoff, R-Yankton. “If we want to generalize and put everyone in the average and start at 50-50 (custody), we’ve lost that important value.”
But shared parenting supporters said having both parents involved in a child’s life is important enough to make that the presumption.
“We assume in a marriage that raising children is a 50-50 responsibility and a blessing,” said Heineman. “Why in a divorce… do we automatically determine this shared mission is over?”
There were some areas of agreement. Both sides said shared parenting could work well and be the best outcome. Where they disagreed was on how often it works and how much to encourage it. Opponents said it works when the divorcing couple gets along and works together to share parenting responsibilities — but not when that good will isn’t there. Supporters said even parents who are forced into shared parenting by a judge will often produce better outcomes for the children than one parent having primary custody.
If SB 125 had passed, judges wouldn’t have been forced to rule in favor of shared parenting. Parents who came to agreements outside the courtroom could do what they wanted, and in the courtroom parents could persuade the judge to order sole custody. But the burden would be on parents opposed to shared parenting to make that case, instead of on a parent advocating for shared custody.