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Question of the Month ~ May 2015


Q. What is the status of “shared parenting” legislation and laws in the Midwest?

The National Parents Organization, a group that advocates for “shared parenting,” defines the term this way: “require equal or, when that’s not feasible, nearly equal parental responsibilities” in child custody cases.
In the Midwest, many “shared parenting” laws have been considered in state capitols and on statewide ballots. But to date, proposals to mandate (with some exceptions) joint and/or physical child custody have failed.
This past fall, for example, North Dakota voters rejected an initiated statutory measure which would have presumed that both parents are fit and should be awarded equal parental rights and responsibilities. Only “clear and convincing evidence” could rebut this presumption of fitness.
Advocates for this type of statutory change say it would help more children of divorce have a full relationship with both parents. But detractors of the North Dakota ballot measure said the state’s current law takes the preferred approach: make the “best interests of the child” the standard in child custody decisions. In other states, too, concerns have been raised that shared-parenting proposals would not allow for enough judicial discretion in individual cases.
The North Dakota ballot measure lost by a vote of 62 percent to 38 percent. Last year, the South Dakota Legislature passed SB 74, a bill that requires judges to consider joint physical custody when either parent requests this arrangement.
This new law, however, doesn’t mandate shared parenting, nor does it require judges to presume that this arrangement is in the best interest of a child. In addition, if a parent has a history of domestic abuse or assault, joint physical custody is presumed not to be in the best interest of a child.
This year, Michigan (HB 4141) and Nebraska (LB 437) are among the states where versions of shared-parenting laws have been introduced. The Michigan legislation would make joint and shared physical custody the presumed outcome in cases, minus “clear and convincing evidence that a parent is unfit, unwilling or unable to care for the child."
Nebraska’s LB 437 encourages courts to adopt a parenting plan that provides for joint legal custody. It also would bar judges from issuing orders that give one parent less than 35 percent of parenting time (minus extenuating circumstances such as child abuse or physical assault).
Three years, ago, Minnesota Gov. Mark Dayton vetoed legislation (HF 322) that would have raised the amount of time each parent is presumed to get with his or her children — from 25 percent to 35 percent.
“Each divorce has its own unique set of facts, conditions and circumstances,” he wrote in his veto message. “Thus it is very hard to codify one set of presumptions and preferences which will apply to every family situation.”
But that veto didn’t end work on changing the state’s laws governing child custody. Last year, the Legislature passed HF 2722, which states that there is no presumption for or against joint physical custody. (Historically, Minnesota courts have shown a preference against this arrangement.)


Article written by Tim Anderson, CSG Midwest senior policy analyst. Question of the Month highlights a research inquiry received by CSG Midwest.