The State Bar Association of North Dakota Summer 2014 Gavel Magazine | Page 28
BY JASON
MCLEAN
McLean is a state
approved Parenting
Investigator and
Guardian ad Litem
in North Dakota.
He has also been
a presenter and
lecturer for an
adoption law
seminar.
THOUGHTS ON THE SHARED PARENTING INITIATIVE
For over 11 years, I have been a family law attorney
in Minnesota and North Dakota. I handle adoptions,
child support, divorces, and paternity cases. These cases
can sometimes be contentious. Over the years, I have
helped many families avoid prolonged and agonizing
battles. Many believe these battles dominate our
court system. However, the reality is quite different:
For example, I average only one contested trial or
evidentiary hearing per year. All my other cases resolve
respectfully, by agreement.
I have represented men that received primary
residential responsibility (custody) of their children
and mothers who have lost it. I have seen parents
have the “light bulb moment” where they realize that
the harm of the fight is greater than the gain of the
outcome. I have seen families heal and move forward
in healthy relationships, despite the pressures of
divorce and division. I have seen all of this in a current
system that makes the best interests of children its
paramount concern.
The Shared Parenting Initiative (SPI), which will be
on the November ballot, would impose a presumption
that equal residential responsibility is in the child’s
best interest…in every case, no matter the individual
circumstances. It proposes that the “presumption of
fitness” can only be overcome by “clear and convincing
evidence.” However, it does not define “fitness,”
nor identify what evidence would overcome that
presumption. Current law, and mandatory mediation
requirements, foster autonomy and cooperation for the
children. The SPI does the exact opposite.
Because of the higher legal burden a presumption
creates, a parent seeking primary care of the child will
have no choice but to throw the proverbial “kitchen
sink” at the other parent. This will occur in Court,
on an open record, for all to see, including children,
extended families, and friends. This won’t serve a
child’s best interests.
One of the hallmarks of North Dakota’s existing
law is that the best interests of the child trump the
wishes and desires of a parent. Unlike some states, the
North Dakota district court is not required to weigh a
parent’s desire in making its final decision. In fact, our
Supreme Court specifically reminds the district courts
to focus on what is best for the child, not what is best
for the parent.
Thus, our law provides 13 “best interest factors”
for the trial court to consider. These factors run
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THE GAVEL
the gamut from examining stability of a parent’s
proposed home to whether a parent has a health issue
that affects the ability to parent. Assessing all of a
child’s circumstances allow Court’ to tailor custodial
arrangements specific to an individual child’s needs.
The SPI’s cookie-cutter approach wrongly assumes
one arrangement is good enough for every child.
In fact, our law is gender-neutral. There is not a
presumption that allows the award of a child to the
mother over the father. Each parent comes in on equal
footing.
Where the focus of our law is on the child’s best
interests, its backbone is maintaining the stability and
continuity for the child. These cases are not about
gender; the cases are about which parent can provide
the most stability and best care for a child. Admittedly,
making this determination can be difficult for a court.
Fortunately, the courts do not have to do so in most
cases.
In 2008, North Dakota launched a mediation
pilot program with the goal of minimizing family
conflicts and encouraging shared decision-making.
The program became mandatory, statewide, in 2011.
Its results have been nothing less than remarkable.
According to the Final Evaluation Report of the Pilot
Program, issued July 30, 2013:
• 71 percent of cases that were in the mediation
program were resolved in mediation or shortly
thereafter.
• The program saw a rescission rate of only 10
percent.
• Participants regularly reported that they learned
new methods of dispute resolution or something
about themselves or their spouses in mediation.
• 87 percent of the participants were satisfied with
the mediation program.
• 93 percent stated that they felt the process was fair
to them.
• Over 95 percent of the participants stated that they
felt respected during the process, that the mediator
cared about their case, and that they were treated
equally.
• Over 50 percent of the participants had median
incomes of less than $3,000 per month.
• These results were achieved voluntarily, without a