There has been a lot of talks lately about “House Bill 1392,” also known as the “Shared Parenting Bill,” in North Dakota. Shared parenting is the concept that both parents receive equal parenting time and decision making in divorce and custody actions.

I have heard that if the Shared Parenting Bill makes its way into law there will be a “presumption” of shared custody, which is actually what we call “equal” residential responsibility in North Dakota, and that the law would be made “retroactive.”

According to Black’s Law Dictionary, “presumptions” are rules of evidence calling for a certain result in a given case, unless the adversely affected party overcomes it with other evidence. In other words, in terms of a presumption of shared custody, a North Dakota District Court would have to find that the parties exercise parenting time equally in a custody/divorce action unless the party opposing it could come up with something credible showing it should not happen.

Making this law “retroactive” would mean that the presumption of equal custody would apply to actions that have occurred in the past. In other words, if a person was divorced five years ago and received visitation, rather than equal custody, that person could ask the Court to apply the aforementioned presumption to their case to attempt to change the custody arrangement to equal.

After reviewing the actual language contained within the Shared Parenting Bill that is now in front of the Senate; however, it appears as though neither of these things is included.

Below is a copy of the Shared Parenting Bill, as it stands now, with the amendments underlined.

SECTION 1. AMENDMENT. Section 14-09-00.1 of the North Dakota Century Code is amended and reenacted as follows:

14-09-00.1. Definitions. As used in this chapter, unless the context otherwise requires:

1. “Decisionmaking responsibility” means the responsibility to make decisions concerning the child. The term may refer to decisions on all issues or on specified issues, but not child support issues.
2. “Parental rights and responsibilities” means all rights and responsibilities a parent has concerning the parent’s child.
3. “Parenting plan” means a written plan describing each parent’s rights and responsibilities.
4. “Parenting schedule” means the schedule of when the child is in the care of each parent.
5. “Parenting time” means the time when the child is to be in the care of a parent.
6. “Primary residential responsibility” means a parent with more than fifty percent of the residential responsibility.
7. “Residential responsibility” means a parent’s responsibility to provide a home for the child.
8. “Shared parenting time and residential responsibility” means each parent has the child in that parent’s care for a time that is as close to fifty percent of the time as can be arranged based on the circumstances but which is not less than thirty – five percent of the time.

SECTION 2. AMENDMENT. Subsection 1 of section 14-09-29 of the North Dakota Century Code is amended and reenacted as follows:

1. A court issuing an order that deals with parental rights and responsibilities of a child entered under this chapter shall award the parental rights and responsibilities concerning the child to a person, agency, organization, or institution as will, in the opinion of the court, promote the best interests and welfare of the child.
2. Between the mother and father, whether married or unmarried, there is no presumption as to whom will better promote the best interests and welfare of the child.
3. In any initial proceeding dealing with parental rights and responsibilities in which one party requests shared parenting time and residential responsibility, the court shall articulate in its decision the rationale for either awarding or denying the request for shared parenting time and residential responsibility.

Conspicuously missing from these amendments is any mention of the word “presumption.” Also, it is clear from the Legislature’s usage of the words “initial proceeding” that whatever the Shared Parenting Bill amends, it only applies to cases in which there is not already an existing custody order.

Basically, the legislature has required a district court judge to “articulate,” or explain, its reasoning for giving shared parenting or not. In my humble opinion, this was something the district court was already expected to do.

Therefore, those people anxiously awaiting a presumption that they will receive equal time with their child will have to continue to wait. Interestingly enough, though, “legislative management” is supposed to “consider studying,” among other things, shared parenting during the 2017-18 interim. If this happens, legislative management is to report its findings and recommendations to the next legislative assembly. Only time will tell what the legislative management will find and recommend. Until then, parties should contact an attorney regarding how this new legislation could affect their future case.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to your particular set of facts.

If you have any questions regarding the Shared Parenting Bill, please contact the Family Law Team at Severson, Wogsland & Liebl by calling 701-297-2890 or send us an email below.

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