Measure 6 is a current initiative, which if approved, would create a legal presumption that each parent in a child custody case is fit to parent and that a requesting parent should receive equal residential responsibility. That artificial presumption of fitness as a parent could only be rebutted upon a showing by clear and convincing evidence. A burden of proof higher than that needed to win a civil trial for negligence—only slightly below the burden required to convict someone of a crime—and is typically associated with the proof needed for the State to terminate parental rights in the most extreme cases…Currently in North Dakota the law requires that parenting rights and responsibilities be determined by analyzing 13 best interest factors and weighing those factors as they apply to each parent. These factors include the ability of each parent to provide for the child, the sufficiency and stability of each parent’s home environment, the mental and physical heath of each of the parents as it impacts the child, as well as other factors. The purpose of the law as it stands is to determine what is in the best interests of the child through analysis of the best interest factors.
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.