With Measure 6, there would be an artificial presumption that equal residential responsibility is in the best interest of the child. While equal residential responsibility may be best for the child in some cases, that is certainly not true across the board and in every case. Each situation is unique. Each child is unique. The effect of Measure 6 will likely be to encourage a mud-slinging contest between the two parents trying to prove the other is “unfit.” This will not only involve matters that are incredibly personal, but difficult to prove in a courtroom.
Another issue with Measure 6 is the lack of definition regarding what exactly constitutes a fit or an unfit parent. The consequence of this ambiguity will likely be substantial litigation while attorneys and judges attempt to decipher the meaning of these terms. While the litigation unravels, the children will continue to be caught in the turmoil of their two parents’ quest for the other’s “unfitness.” The perhaps well-meaning, idealistic legislation ultimately creates impractical, undesirable results.
Currently, if the court believes equal residential responsibility is in the best interests of the child, they order exactly that. As it stands today, the Court is not bound by an artificial presumption mandating equal residential responsibility, but Measure 6—if passed—would change that. Passage of Measure 6 would take away what’s best for the children and instead create an artificial standard regarding parents’ capabilities unless clear and convincing evidence is presented to rebut the contrary.
In conclusion, the current law in North Dakota focuses on the best interests of the child; this focus allows the courts to apply those 13 factors to determine if it’s in the child’s best interest to be with the mother, father, or if an equal residential responsibility situation is appropriate. Starting out with the artificial presumption that equal residential responsibility is appropriate solely because each parent is “fit” is not necessarily what is in the child’s best interest.