North Dakota voters will have an opportunity this year to vote on an initiative that would give both mothers and fathers equal rights in custody cases, and make equal time the default position. Current North Dakota law is silent about whether sole or joint custody is in children’s best interests, or how much time each parent should be allowed with his or her children. Instead, judges are simply instructed to consider a variety of “best interest” factors.1 2014 ballot measure 6 would sharply limit judicial discretion when making custody decisions. It would require courts to award each parent equal rights and responsibilities unless a good reason for doing something different exists.
The text of the ballot measure is as follows:
This initiated measure would amend section 14-09-06.2 of the North Dakota Century Code to create a presumption that each parent is a fit parent and entitled to be awarded equal parental rights and responsibilities by a court unless there is clear and convincing evidence to the contrary; the measure would also provide a definition of equal parenting time.
The initiative measure has the support of a number of organizations. These include Lawyers for Shared Parenting; Leading Women For Shared Parenting; the North Dakota Libertarian Party; American Coalition of Fathers and Children; Divorce Corp.; and several others. Actors Kiefer Sutherland and Jason Patric, as well as several prominent attorneys, have also voiced their support.
Arguments for Ballot Measure No. 6
Jill Bjerke, chairperson of the initiative’s sponsoring committee, has advanced the following arguments in support:
- Sole custody generally is not in children’s best interests;2
- Equality of parental rights is more consistent with the U.S. Constitution than the current system is;
- Making equal shared parenting the default position will make custody proceedings less adversarial;
- An equality presumption will reduce custody litigation and lighten the burden of overworked courts.
Ms. Bjerke has also suggested that the initiative will give children the benefit of being raised by both parents, rather than by their mothers alone, which is currently the norm.
Arguments against Ballot Measure No. 6
Arguments that have been advanced in opposition to the measure include:
- Families shouldn’t have a “one size fits all” solution imposed on them; instead, judges need discretion to decide what is best for them;
- Measure 6 is said to focus more on parental rights than on children’s interests;
- The current system is working fine;
- Sharing custody is a bad idea in high-conflict cases;
- It will increase litigation;
- It fails to give stay-at-home mothers any special recognition;
- Equal custody time will greatly reduce the amount of child support that mothers receive from fathers.
Who is opposing Ballot Measure No. 6?
Organizations working to defeat Ballot Measure No. 6 include the North Dakota Women’s Network; the American Association of University Women; the North Dakota Council on Abused Women’s Services; Prevent Child Abuse North Dakota; the American Civil Liberties Union; and the North Dakota Bar Association.
In some ways, it makes sense that women’s special interest groups would oppose this initiative. As discussed in my blog, The History of Custody Law, and in my book of the same name, American custody jurisprudence has long recognized a preference for mothers. When the law was gender-neutralized in the late twentieth century, the rule that mothers should always be awarded sole custody of children unless proven to be completely unfit to parent gave way to a facially-neutral list of factors that courts are to consider when deciding custody. The factors are usually so vaguely worded that it is very easy work for a judge to interpret and apply them in a way that will continue to favor the mother in every case, if he or she is so inclined. In short, the “best interest” standard arguably hasn’t eliminated the maternal preference; it has just driven it underground. Assuming social and cultural norms still favor maternal care over paternal care, women’s interests obviously are better served by a vaguely worded set of “best interest” factors than by one that demotes mothers to a position of equality with fathers in custody cases.
It is not quite as easy to understand why abuse prevention organizations are opposed to it. The measure does not require placement of children in the custody of an abusive parent. It would not create a conclusive presumption of shared custody. To the contrary, equality would just be the starting point. If there is evidence of abuse, then a court would still have the power to award sole custody to the non-abusive parent.
It is considerably more difficult to understand why the American Civil Liberties Union and the North Dakota State Bar Association are opposed to the measure.
The American Civil Liberties Union (ACLU)
The ACLU’s mission, as trumpeted on its web page, is this: “The ACLU is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.”3
The rights mentioned are: First Amendment (speech, press, religion, association, assembly); Equal Protection (the right to be free from unlawful discrimination); Due Process (the right to be treated fairly by the government when it tries to take something away from you); and Privacy (freedom from unwarranted government intrusion into your personal and private affairs.) The site says it “also works to extend rights to segments of our population that have traditionally been denied their rights….”4
The long history of courts and legislatures denying custody and other parental rights to fathers in this country, as reflected in the maternal preference and tender years doctrines, and in pre-Stanley v. Illinois legislation and judicial decisions categorically denying parental rights to unwed fathers, would lead one to expect the ACLU would be on the side of fathers in this instance. One also would expect that the organization’s supposed commitment to the Equal Protection clause’s guarantee of equality would impel it to support a ballot measure that calls for equal parental rights and responsibilities. Finally, since the Supreme Court has recognized parental rights to be part of the “liberty” protected by the Due Process clause, one would think that supporting parental rights – those of both men and women – would be an ACLU priority.
Here, the ACLU seems to be working for goals diametrically opposed to those set forth in their mission statement. Here they are working to preserve judicial discretion to deprive a parent of “liberty” rights protected by the Due Process clause. They are working to preserve a system that enables courts to practice discrimination and get away with it. By working to preserve judicial discretion to inquire into every minute detail of parents’ lives in order to determine which one is “best” for a child, they are working to promote government intrusion into people’s personal and private affairs. And last but not least, they are working to block the extension of rights to segments of the population that have traditionally been denied their rights.
It appears the ACLU has once again lost its focus, this time in a very big way.
The North Dakota State Bar Association
The North Dakota State Bar Association’s activities in opposition to the measure are also problematic.
In Keller v. State Bar California,5 the United States Supreme Court ruled that a state bar association’s use of compulsory dues to finance political or ideological activities with which a member might disagree violates the member’s First Amendment right of free speech if the expenditure is not reasonably and necessarily incurred for the purpose of regulating the legal profession. How is the North Dakota Bar Association’s opposition to a shared parenting initiative related to regulating the legal profession?
The U.S. Supreme Court acknowledged, in Keller, that “where the line falls between permissible and impermissible dues-financed activities will not always be easy to discern” but suggested that “the extreme ends of the spectrum are clear: Compulsory dues may not be used to endorse or advance [or, a fortiori, oppose an] initiative, but may be spent on activities connected with disciplining Bar members or proposing the profession’s ethical codes.”6
Opposing a change to a state’s substantive child custody laws is not, by any stretch of the imagination, an activity connected with disciplining Bar members or proposing the profession’s ethical codes.
Here, an outfit calling itself “Keeping Kids First” was established to oppose Ballot Measure No. 6. The specifics of the relationship between this outfit and the North Dakota Bar Association are not yet completely clear. It does appear likely, however, that bar association funds, possibly including member dues, were donated and used in connection with its establishment and/or operation.
The North Dakota Bar Association has responded by claiming the ballot measure is a social policy measure, not a political activity. First Amendment rights are not restricted to political speech, though. Views about social policy are also protected. Moreover, the Keller court specifically cited social policy initiatives as examples of speech falling at the “prohibited use of funds” end of the spectrum. Indeed, it described advocacy in connection with a ballot measure relating to social policy as being at the “extreme end,” the “prohibited use” end of the spectrum.
Had the Bar Association simply published the views of its members in a Bar publication, it probably would have been operating well within its rights. According to Leading Women For Shared Parenting, though, the Association went beyond that, actually donating some $60,000 of Association money to the outfit to actively campaign against Ballot Measure No. 6. If this is true, then it would seem that a pretty strong case can be made that the Association violated the First Amendment rights of those of its members who support the measure.
Why have the ACLU and the North Dakota Bar Association chosen to involve themselves in this issue, even to the extent of risking legal liability for violating constitutional rights? One possible explanation is that bar association members, or at least members of the family law section of the bar association, make a lot of money on custody litigation, so they naturally would like to preserve the status quo. The bar association, however, claims the new law would intensify litigation, not reduce it. On the other hand, a bar association’s crystal ball is no better than anyone else’s. And it might be that some members do fear diminished demand for their services if the measure is passed, despite what their leadership says.
This can’t be the whole explanation, though. For many years, the family law sections of state bar associations have been actively campaigning against other kinds of family law reforms, too. Proposals to make child support guidelines and alimony fairer to noncustodial parents and men typically draw fierce opposition from the family law sections of bar associations. And job security or greed would not explain the ACLU’s decision to become involved in a campaign whose purpose seems to be more about diminishing civil liberties and equal rights than protecting and advancing them.
Something else – or something additional — must be going on. I will not speculate about what that may be. This would be a good question to ask of your state’s chapter of the ACLU, and the family law section of your state’s bar association.
My book, The History of Custody Law, is available in paperback and as a Kindle e-book:
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- N.D. CENT. CODE § 19-09-06.2 (2014). ↩
- She cites the Research Consensus Statement on Co-Parenting After Divorce, Conclusions of the First International Conference on Shared Parenting, as reported in Psychology Today. ↩
- retrieved from https://www.aclu.org/guardians-freedom on October 16, 2014. ↩
- Id. ↩
- 496 U.S. 1 (1990) ↩
- Id. ↩