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Does best interests of the child standard ignore parental rights?

There is an argument brewing in North Dakota. In November, voters will decide if they want to amend the state child custody law to make it friendlier to fathers -- at least, that's how the press characterized the language.

Proponents mounted a campaign earlier this year to add the measure to the ballot. By June they had gathered enough signatures on the petition to submit to the secretary of state for verification, and by the end of July they had word that the referendum will be on the ballot.

Here in Minnesota, we are used to the courts making child custody decisions based on the best interests of the child. To guide the courts in determining the best interests, state law lists a number of factors to be considered. The child's preference, the child's connection with the community, which parent has been the primary caregiver -- these are just a few factors mentioned in the statute, and the statute makes it clear that the list is not exhaustive. The court cannot give one factor more weight than the others.

The effect of the law is that the court cannot make any assumptions about which parent would be the better custodial parent. Best interests factors took the place of the courts' presumption that the mother would get custody merely by virtue of being the mother.

Remember, family law matters are controlled by state statutes, not federal laws, so custody guidelines may differ from state to state. While no state says outright that the best interests of the child don't matter, there are states that value joint or shared custody over the designation of one parent.

Minnesota law goes out of its way to clarify that there is no presumption in favor of joint custody. North Dakota, according to proponents of the ballot initiative, should take the opposite stand: Joint custody should be the default.

We'll get into the arguments for and against in our next post.

Source: Washington Post, "Fathers' rights initiative makes North Dakota ballot," Reid Wilson, July 23, 2014

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