Alas and alack! Or is it a lass and a lackey?
One-note angry dad Representative Tom Pischke (R-25/Dell Rapids) has again coaxed seemingly decent if misguidedly Republican Representative Tamara St. John (R-1/Sisseton) to carry Pischke’s next in his endless series of bills designed mostly to avenge his losing custody battles.
House Bill 1052 would make joint physical custody the default response of the courts to custody battles. It would strike the ability of one parent to request meditation and leave that option solely to the judge.
St. John fronted Pischke’s revenge last year with a similar bill which survived the House but died in Senate Judiciary. Putting St. John’s name first may have helped Pischke’s cause; when he tried this before in 2019, with his name leading the bill, his joint-custody ploy died on first contact with committee. In 2017, Pischke pushed another joint-custody bill to the House floor after a committee do-not-pass vote.
Representative St. John, I’ve got to ask you what I suspect other women in the general vicinity of Representative Pischke have been asked: Why do you hang around with a guy like that?
We can only hope the Legislature will see Pischke’s misogynist campaign revving up again and kill his bills quickly so they can get on with serving the public good.
I feel sad to have been born in Dell Rapids.
When you think through the family dynamic these days .. I think this is good.
Men are getting the shaft (which isn’t any better than women).
What about joint custody being a default is misogynistic? I’m not following.
The wellbeing of kids who are dealing with divorcing parents should be the only thing that matters when it comes to custody – not the gender of either parent. Cory, you don’t often throw around heavy words like misogyny without good reason, so what am I missing?
If
then Pischke’s proposed change is not only unnecessary, it undermines that very prinicple since the law Pischke seeks to change already provides:
Reading the last link in Cory’s opening paragraph provides the historical context for the “misogynistic” comment. And as pointed out in the linked story, Pischke’s ex-wife “presented a reasoned explanation of how [such a change in law] would have hindered the ability of judges to determine what is in the best interest of children.”
It makes little sense to legislatively force a judge to shift his or her focus in a case away from the child’s best interest, and, instead focus on whether one parent has satisfied the “preponderence of the evidence” legal standard required to overcome a legislative presumption. And if this proposed change doesn’t force a judge to change his or her focus or simply creates a distinction without a meaningful difference, then what would be the point?
Look up the definition of narcissism and Pischke fits it. He loves attention directed at him for the sake of his children. Narcissistic abuse is obviously what his ex suffered. Educate yourself women, stay away from these kinds of men.
bcb – i somewhat see what you are getting at… because judges are already given discretion, and the new method of determining custody would still afford the judge the discretion to order custody contrary to the default of joint legal custody, it seems like a bit of an unnecessary change.
I guess I would say that I understand the desire to support joint legal custody as a default because I think our society has unfairly disfavored divorced fathers when it comes to parenting roles. Certainly there are a lot of factors that lead to this result, but something like 5 out of 6 custodial parents are mothers. Perhaps they are the parent who is most often in the best interest of the child, but 83% of the time seems high enough to cause a rational person to wonder if gender alone is inappropriately being considered.
Too bad there wasn’t a foolproof way to look at a divorcing couple and just know who would be the better custodial parent. I hope to never have to deal with this in my own life.
Joint physical custody as default is merely setting the starting point at an equal basis, not removing the ability of the court to adjust custody for the benefit of the children. This is already the situation in many of the more progressive states and reflects the parenting of today, not the 1920’s. It also creates a fair standing as default for the time from when the divorce procedure starts until a custody agreement can be reached through the court system. During this time, many fathers can be cut out from their children’s lives, at a time when children need both parents most, with the standard every other weekend visitation for the father.
Assuming domestic/child abuse is not a factor, the best interest of the child is best served by having both parents involved in the child’s life. By involved, I mean as close to fifty fifty as possible.
When my ex and I divorced we wrote our own child custody agreement centered around fifty-fifty physical custody. That also made the financial issues much easier. We did that on our own as well. That worked for us because we were committed to it. I guess the judge signed off on it because that’s what we did, whether he agreed or not. When life circumstances changed we just figured it out on our own. At times one or the other had work or other commitments that skewed the fifty-fifty. We figured it out, and didn’t run to the judge. Over my dauighter’s childhood, it worked out to almost exactly fifty fifty.
Ryan, favoritism toward awarding custody to mothers has a history premised in part on another common law “legal presumption” called the “Tender Years Doctrine,” which directed judges to favor the mother in custody disputes involving young children.
South Dakota rejected this doctrine by statute in 1979, as did many other States, and replaced it with “the best interests of the child.” That history provides yet another reason why “legal presumptions” based on potentially inapplicable generalizations are a slippery and potentially harmful slope in child custody determinations, despite whatever good intentions might be behind such presumptions.
Ron’s comment that “Joint physical custody as default is merely setting the starting point at an equal basis” appears to be the current law in South Dakota, with no legal presumption that custody should be placed with either the mother or father, nor any legal presumption that “joint physical custody” is required. Instead, if the parents cannot agree on custody a court can grant an emergency custody order granting temporary custody to either parent, based on the judge’s evaluation of either parent’s allegations that the children’s best interest is met by placing temporary custody with that parent. Such temporary orders are then subject to revision after a promptly scheduled evidentiary hearing.
Pischke’s proposed law would change this current equilibrium by the creation of legal presumption of joint custody, theoretically tying a judge’s hands absent receipt of sufficient credible evidence to overcome the presumption. The proposal seems to indicate a distrust of South Dakota’s circuit court judges more than favoritism toward a mother or father. In Pischke’s case, given the history that Cory has linked about his dissatisfaction with the judge’s custody order in his individual case, this distrust appears to come from a stereotype that South Dakota judges are not trustworthy to act in the children’s best interest, but are predisposed to believe that a mother always deserves custody unless there is proof that she is unfit. And as always, the problem with stereotypes is that they are often incorrect.
Another factor that ought to be considered by anyone that thinks a child’s best interest should be the paramount consideration in refusing to award joint custody is Pischke’s proposed theoretical change in the burden of proof. Someone seeking to overcome a legal presumption must present what the law calls “substantial evidence” before a judge can issue an order contrary to the presumption. Presentation of only “slight evidence” is insufficient. Under the Pischke presumption, then, if there is no evidence at all that joint custody is in the children’ best interest and unchallenged “slight evidence” that joint custody would be harmful and contrary to the children’s best interest, the a judge is legally required to order joint custody notwithstanding the lack of evidence that this is in the children’s best interest and in the face of the slight contradictory evidence otherwise.
Somewhat ironically, Pischke’s proposal apparently assumes that the same stereotypical untrustworthy judges that he thinks currently ignore existing law by favoring mom, will magically now refuse to favor mom due to the new presumption.
My name is Matthew West and I am a parent who lives in Sioux Falls. I have two young children and my family are my world.
Currently our system is biased and fails unmarried couples. All children in South Dakota as a standard within the custody legal battle begin as sole wards of their mother and their mother alone if the parents are not married. That is a very antiquated basis to begin an argument. Fathers have to be assigned their rights by the courts and hardly ever so they begin at joint custody even if both parents are demonstrating equal care and support and wellbeing for the child- the mother has all the power.
The assumption should be that joint custody is in the best interest of the child- a child should have equal access to both parents and from there a judge would determine if for some reason(s) unique to a particular family unit that one parent isn’t fit for joint custody. The system we have now for unmarried couples is that all women are the best of two parents, simply because they are the female parent, that seems ridiculous.
I currently have been fighting for my rights and responsibility as a father for years. This by its very nature is absurd. In our current system I, the parent of my 7 year old has to fight to get time, to support, to care and to take part in my child’s life. I have been the primary caretaker for both of my children since their births. I have zero personal, legal, or financial reasons that would warrant the reduction of my rights and responsibilities as a parent. The current system is written to favor one parent over the other. The law should not be biased but instead start from a place of equality and move from there.
HB 1052 will allow for both unmarried and married couples to start off as equals for their rights and responsibilities. The children are a product of two human beings and the beautiful gift should be cared for, loved, protected, and supported by both parents as equals. That should be the standard.
Furthermore… I wont even try to unpack the BS of claiming this bill to be misogynistic.
While I can not comment on Pischke’s motives for brining the bill and what seems to be his unfortunate past, to begin child custody at 50/50 shared joint custody as the standard for children born to both married and unmarried couples is in the best interest of the child.
The problem is that the system is biased and fails unmarried couples. All children in South Dakota as a standard within the custody legal battle begin as sole wards of their mother and their mother alone if the parents are not married. That is a very antiquated basis to begin an argument. Fathers have to be assigned their rights by the courts and hardly ever do they begin at joint custody even if both parents are demonstrating equal care and support and wellbeing for the child- the mother has all the power.
While I would agree mothers and women are typically a group needing protection along with their rights, this might be a different case. Human rights regardless of gender or title in a household might be where we operate from.
The assumption should be that joint custody is in the best interest of the child- a child should have equal access to both parents and from there a judge would determine if for some reason(s) unique to a particular family unit that one parent isn’t fit for joint custody. The system we have now for unmarried couples is that all women are the best of two parents, simply because they are the female parent, that seems ridiculous. Lots of children are born to unmarried couples.
Two comments assert:
This comment appears to be factually incorrect under SD law, unless I have overlooked a statute supporting such a claim, which is always a reasonable possibility. Perhaps either Eowyn or Matthew West (or anyone else for that matter) can identify the particular state statute, statutes or S.D. Supreme court decision that supports such a statement of fact? If not, the statement is simply wrong and is not a rational basis to support or oppose Piscke’s proposed law.
@bearcreekbat
When parents are unmarried, the mother is considered to be the sole custodian of the child, until the matter is brought before the court and paternity is established (SDCL § 25-5-10).
https://casetext.com/statute/south-dakota-codified-laws/title-25-domestic-relations/chapter-5-parent-and-child/section-25-5-10-custody-and-earnings-of-children-born-out-of-wedlock
You should look it up. Fathers have zero rights until granted by the court regardless of how long they’ve been present and caring for their child(ren).
Thanks Eowyn! I did look it up and you are right, SDCL 25-5-10 initially grants a biological mother full custody and all parental rights, while most unmarried men (see below) claiming to be the father can only gain rights by court order. But notice that the statute only applies to some children in this situation, not to “all children,” and not to any men married to the mother, rather only to those unmarried men who were not divorced from the mother within 10 months of the child’s birth.
Perhaps one reason for such a statute is the lack of any legal presumption that a man not married to the birth mother is the biological father of a newborn (in contrast to the legal presumption that a husband is the biolological father of a child born to his wife during the marriage or within 10 months of a divorce, codified at SDCL 25-5-3). Thus, an unmarried man claiming to be a biological parent seeking custodial rights would have to provide evidence (perhaps a blood test or admission by the mothert) that he is in fact a biological parent.
I also note that SDCL 25-5-10.1 provides that:
This statute seems to negate any argument that a man who has legally established that he is in fact a biological parent has some greater burden in court than a married father. In either case, if the mother refuses to allow the man any parental rights the man still must go to court to enforce his rights, and as SDCL 25-5-10.1 indicates, there is no presumption that a mother should have custody, rather the court must award custody to whichever parent can best satisfy the child’s best interest.
I do note that SDCL 25-5-10 would entitle an unmarried mother, without being required to first obtain a court order, to the assistance of the sheriff to take physical custody away from a man that claims to be a biological father and previously has taken physical custody of the child with the mother’s prior consent, or by surreptitious or violent means, but without a court order, and now refuses the mother’s efforts to regain physical custody. Even in that unusual case the mother would not be entitled to any presumption or advantage in front of a judge once the case was in court.
my argument is this; parents (who are just that engaged participatory parents that are not abusing said child(ren) and or other parent or people for that matter) deserve equal access and responsibility to their child(ren) regardless of state or religious sanctioned unions. Period. Full Stop.
We should not legislate for the exceptions. We should assume all parents want equal access to their children and let families establish their co-parenting relationships from the basis of 50/50 shared custody. All other situations will be taken to court regardless. If one parent is not participating fully whether it’s financially or with time- that will come out in court. From my vantage point many conflicts are resolved with equity as a basis for solution.
One problem with giving any man parental rights “regardless of state or religious sanctioned unions” is the problem of establishing paternity. While in the typical case there is no doubt that a woman who actually gives birth, is in fact the mother, the identity of the father is simply not similarly self-evident.
If there is any unfairness to unmarried men, it would be that the law does not hold a married man to the same requirement of using a court to establish paternity and enforce parental rights. To correct this inequity SDCL 25-5-10 could be amended to award all custody and parental rights to all birth mothers until any man, married or single, proves his own paternity in court.
On the other hand, if men and women are to be treated equally, then any newborn would have to be placed in the custody of the State until either or both the woman and man are able to provide satisfactory proof to a Judge of their biological connection to the child.
But to purport to grant any unmarried man the immediate legal right to custody and parental rights, absent court order, over a newborn based on the man’s mere claim to be a biological parent would seem to open a real pandora’s box. And if we followed that path, then what if two or more unmarried men clamed to be the biological father of a newborn? Absent a court determination, which man would be entitled to the child and which one locked out?
A woman giving birth is the host, not necessarily the biological host, in cases of surrogacy.
my comments are based on the realities of blended families and the assumption droves of people are not out in the world claiming children that don’t belong to them biologically or otherwise. I’m not talking science fiction where a whole society is trying to assert power and take children that don’t belong in their care. yeah sure, we should legislate like we live in a place or a time where people are just walking around taking other peoples kids and the courts are going to sort that out.
In practice, as I have seen, in a number of occasions; children born out of wedlock (what an archaic phrase) and their father(s) have proven via paternity test that they are in fact the father- are still not granted 50/50 shared custody upon those scientific results. I am and have always been referring to situations where it is known that an unmarried man is the father of said child(ren) and in those cases they are not granted 50/50 shared custody as the norm in SD. EVEN (and in spite of) with all the codified law pushing judges in that direction. And if you don’t have the time, skill set, or money to assert your rights in the courts even with codified law on the side of 50/50 shared custody more often than not, that unmarried male person isn’t achieving equity in terms of their parenting rights and obligations.
Not to mention what we’re teaching a whole generation about parenting and responsibility- which is not tied to marriage. Child rearing and the dedication to family is not based on marriage nor should the laws relating to children’s rights be based on that union. A child has the human right to equal access to both of their caring responsible parents- the current system and interpretation by SD judges are actively denying that right.
Once determined that two people are the “rightful” parents of child(ren) involved in a custody dispute and both of those parents are sane caring humans doing right by said child(ren)- both parties regardless of sex should have equal access- baseline 50/50 shared custody. Anything else in not in the best interest of parents, children, or society.
In a custody dispute, typically a judge would have to make the determination “that two people are the “rightful” parents of child(ren) involved in a custody dispute and both of those parents are sane caring humans doing right by said child(ren).” Once a judge makes such a determination then SDCL 25-5-10.1 eliminates any legal presumption in favor of the mother.
As for judges that do not comply with custody statutes, their decisions can be appealed by either party. And while using the legal system and courts to protect rights can be complex and costly, the inability to afford competent legal help is a problem shared by way too many people in this State regardless of gender or marital status.
https://www.motherjones.com/crime-justice/2019/08/rapist-custody-abortion/
18 year old rapes a 12 year old girl, she gets preggers, he escapes rape charge, gets 2 year sentence for attempted rape, gets out of jail in one year, rapes another minor, serves time and judge orders first victim to share custody of 10 year old son with her rapist and she has to move within 100 miles of him.
Sounds fair to rapist.
@bearcreekbat
The point is, it’s not happening that way in reality or practice. People should not have to appeal to get to a base line of 50/50 shared custody, as has been illustrated, a way to simply legislate baseline 50/50 shared custody is to legislate 50/50 shared custody as the norm as the statute. Instead of legislating that all parents have to via a court hearing have their parental rights assigned to them, the opposite or reverse could be legislated- we are start with 50/50 shared custody in any custody dispute. Then when there are circumstances that require we deviate from 50/50 shared custody, we use a judge to rule on those issues. Why keep something on the books if it is having adverse and unintentional outcomes for a single parent?! Too many caring and involved unwedded fathers are being treated like second class citizens. We should be encouraging all loving and supportive parents to have equal access to their children and I know we are capable of legislating such a thing. It’s easy, really, begin with 50/50 shared custody.
And obviously the system completely failed in the example listed by @mike from iowa- even with a baseline of 50/50 shared custody- a judge could and should rule that no child conceived by rape should be in the care of said rapist. period. Because one (or many) asinine judge makes a horrendous judgement does not mean we should write inequitable legislation- we legislate for the norm not the examples. We should prosecute for the example above; we have a different system to deal with the above example, it’s call the criminal system, not the family law system. That’s like saying because one mother kills her children, all mothers will kill their children. Not all fathers are rapists- it’s insulting to suggest we legislate based on the fact we assume all fathers to be rapists? Or maybe I’m missing your meaning or attempted contribution to this discussion.
Eowyn, I agree that in an ideal world no parent, married or not, should ever mistreat a child or spouse, be denied access to his or her children, have to go to court or appeal a court ruling, or have to do anything other than simply agree with the other parent on what custodial arrangements are best for their children. Unfortunately, the “reality” is that parents (and judges) often disagree about what is best for the children involved regardless of whatever laws are on the books or might be passed. A law declaring “50-50 shared custody” as a baseline simply would not change this “reality,” as humans simply don’t base their decision to disagree on what they think is best for their children on statutes.