Some angry dads are too much even for Tom Pischke.
Representative Pischke, the divorced dad who has dedicated his Legislative career to fighting child support requirements and making it easier for angry dads to press their visitation and custody rights, actually signed on as House prime to Senator Stace Nelson’s Senate Bill 143, a measure making it harder for scumbuckets to claim visitation rights.
South Dakota law already allows judges to deny visitation rights to a biological parent who “has caused the child to be conceived as a result of rape or incest.” SB 143 tightens that protection up by making it a “rebuttable presumption”—i.e., the default position—”that it is not in the best interest of the child for the court to place the child in the custody of or to grant visitation rights to a person that the court has found by a standard of clear and convincing evidence to have committed an act of rape or incest against the other parent that resulted in the conception of the child.”
The bill received only brief discussion in Senate Judiciary last Thursday. Senator Nelson spoke for it, the committee amended it, and everyone voted to send SB 143 to the Senate floor. Senator Arthur Rusch, who served as a circuit court judge and handled many child custody cases, said he knows of no cases in which rapists got custody and wondered if SB 143 is another solution searching for a problem, but his wondering wasn’t enough to turn his vote nay.
SB 143 would be tougher on a person who conceives by rape or incest than on parents who commit domestic abuse. SDCL 25-4A-22 creates a rebuttable presumption that it is not in the best interests of a child to be placed in joint physical custody with a parent with a history of domestic abuse or assault, but it does not speak to visitation rights.
Worth noting: Democrat Ellee Spawn, who is running for Congress in 2020, says she has been working with Senator Nelson to put this bill through the Legislature. I hope Representative Pischke will be as vocal and bipartisan as Senator Nelson for SB 143 if it survives the Senate and comes to his side of the Capitol.
Under current law, our judges are fully capable of, and legally required to, consider the child’s individual circumstances, needs and best interest in custody determinations. Moreover, we have a State Supreme Court willing and able to review any challenged decision by a circuit court judge to assure that custody decisions are rational, based on evidence, and in the child’s best interest.
Henece, I agree with former Judge Rush, who undoubtedly has considerably more experience in resolving child custody and vistation issues than any of the bill’s proponents, this is simply another solution in search of a problem. There is no need for a presumption that undermines a full consideration of every child’s current needs and best interest. This bill should be killed.
I see it as a safeguard BCB. Some of the judges that have been seated are questionable. I’m not specifying SD’s current judges, but there have been some really poor rulings handed down in family law.
Also, appealing a bad ruling will take time, $ and be further traumatizing to the child. I’d rather see this black letter law.
Debbo, there seems to be a factual problem with your analysis, as it is premised on an understandable, but wishful, hope rather than reality.
The proposed bill does nothing to reign in the behavior of questionable judges. While it purports to change the burden of proof, there is no reason to think that such a change would make any difference to a questionable judge who is inclined to issue an objectively bad ruling under a regular “best interest” standard without the presumption.
And as for appeals, the bill seems to increase the likelihood and uncertainty of an appeal by providing an additional argument to either disgruntled party. One party might argue that a judge failed to give sufficient weight to the presumption, while the other party can challenge the validity or constitutionality of imposing such a presumption against a child and that child’s biological parent. (Recall challenges to the former similar presumption that the best interest of a child of “tender years” required placement in mother’s custody, which eventually was successfully challenged by fathers). This new presumption creates more uncertainty in custody/visitation rulings while doing nothing to shorten the time for a result on appeal.
Current law that this bill seeks to repeal reads “If it is in the best interest of the child, the court may prohibit, revoke, or restrict visitation rights to a child for any person who has caused the child to be conceived as a result of rape or incest.”
http://sdlegislature.gov/Legislative_Session/Bills/Bill.aspx?File=SB143SJU.htm&Session=2019&Version=Senate%20Judiciary&Bill=143
The current standard of determining a child’s needs seems more neutral and protective of the child than a presumption that starts the analysis by denying that child a relationship by visitation/custody with a biological parent because such relationship is deemed in all cases, regardless of circumstances or needs, to be contrary to the child’s best interest.
Some interesting history about the tender years presumption in favor of the mother:
https://theconversation.com/child-custody-parental-rights-vs-the-childs-best-interest-33620
But BCB, Rusch still voted for SB 143, and voted for it again with the unanimous Senate yesterday. Is his concern legitimate but not sufficient to outweigh the negative publicity of being seen as a defender of rapists and incesters?
Curious: would he Equal Rights Amendment have reinforced the case for equal parenting and strengthened the 14th Amendment argument of presuming moms deserve custody over dads?
Thanks BCB. That makes sense.
Cory, I don’t know the answer to that, but I’d rather not see a presumption of one parent over the other.
Cory, I hesitate to guess the reasons for Rusch’s votes on this bill. The information you posted about his objections made sense to me so it is not clear why he voted as he did. I can imagine a fear, however, that a knee jerk reaction to a no vote might just be an assumption, however erroneous, that the no voter was supportive of rapists and incestous individuals, with little thought given to whether the no voter might worry that the proposed change in law could unintentionally harm a child by preventing a relationship, however limited, with a parent.
I think you are probably right about the potential effect of the Equal Rights Amendment on the tender years presumption.