Est. 1964

Custody Article

Shared Custody Rejected by Kendall W. Johnson, Attorney at Law SAVAGE, O’DONNELL, AFFELDT, WEINTRAUB & JOHNSON

While in South Dakota for the Summit League Basketball Tournament with Oral Roberts University, I read an article in the local paper entitled “Shared Custody Bill Rejected.”  Apparently, the South Dakota Senate passed a bill which requires domestic judges presume that joint custody and fifty-fifty parental time should be awarded in a child custody dispute.  That is unless one parent waives joint custody or proves that the other parent should not be awarded such time.

The South Dakota House rejected the Senate’s bill.  

The argument for the bill is that it helps parents have equal time with the children.  Or as Sen. Dan Lederman said, “The bill helps ensure both parents are equal in the eyes of the court.”

The argument against the bill is that it restricts judges from being able to decide custody matters, it would cause more strife between parents, and according to Sen. Joni Cutler, would tend to “treat children as ‘property to be equally divided.’”

Cutler went on to say that “‘Children need stability. . . . Parents who are going to a judge to decide for them are already in a battle.’”

While the intention of the bill is noble, I have to agree with those who rejected it.  Each family is different.  Sometimes the children are being raised primarily by the father and the mother is the secondary custodian.  To begin with the premise that the children should be shared 50/50 unless proven otherwise gives the “separating party” a big negotiating chip in the overall litigation.  

Besides the heartache of a marriage ending, couples must deal with property division, debt division, alimony, in addition to custody time and child support.  And it is the children who end up as losing parties in the fight.  

In Oklahoma, judges are directed by statute to determine the “best interests of the children.”  If one party to a marriage moves out, perhaps to an apartment, is it automatically in the best interests of the children that the children now be ordered to live 50% of the time in that new, and perhaps temporary situation?  What if the separating party moved in with a paramour?  If 50/50 custody was almost assured, what do you supposed the traditional custodial parent would be willing to give up to prevent this from occurring? 

In the midst of the struggle for the less important issues (property, debt, money), parents often forget that it is the children who should be the primary focus.  And the more we prevent children from becoming a bargaining chip in a divorce, the better for everybody.  

Normaan Merchant, AP, Argus Leader, Vol. 124, No. 68, page 3A

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