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Parental rights v. child's best interests: Legal smackdown in ND?

We are circling back to our Aug. 21, 2014, post, "Does best interests of the child standard ignore parental rights?" The discussion was focusing on a North Dakota ballot initiative that would change how courts decide child custody issues in divorces.

If passed, the "North Dakota Parental Rights Initiative," would create a presumption in favor of joint custody. That presumption in turn would require parents to persuade the court that one parent would be a better custodial parent than the other. Should the parents not express a preference for joint or single custody, the court would default to joint custody.

The approach is much different from Minnesota's "best interests of the child" statute. Here, courts must put the child first and must give each of the factors equal weight. Primary caregiver, child's preference, connection to the community and others are meant to defeat the presumption that one parent -- in the past, the mother -- should automatically have custody.

North Dakota also has a best interests statute. The first criterion listed is "[t]he love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance." Minnesota's language is different; the factors are listed separately, but the meaning of the statute is much the same. For North Dakota, proponents of the measure say, the law as written favors mothers.

Opponents maintain that current law is more child- than parent-focused. They also express concerns about the proposal's statement that "no requesting biological or adoptive parent shall be denied … equal primary residential responsibility." They argue that a 50/50 split would be disruptive to the child, especially if the parents live far apart.

The proposal had enough support to make it onto the November ballot, but does it have enough support to make it into the statute books?

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

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