Is South Dakota a Mommy State?

Of the many misconceptions that people hold regarding family law, this one seems to persist the most. In the history of the State, there have certainly been long periods when Mothers were typically awarded primary physical custody of the minor children. Anecdotally, if one goes way back in the history of the law of South Dakota, there was a presumption that Mothers would receive custody of children of tender years, and a further presumption that Fathers would be given custody of older children.

None of that is true any longer. How it actually plays out, however, varies widely from location to location, judge to judge. The basic premise, founded in our law, is that whichever parent has been the primary caregiver of the minor child or children in the year leading up to the filing of the Summons and Complaint (the opening paperwork whether it is a divorce or an unmarried couple) is, at the start, declared to be the primary physical custodial parent. The other parent, regardless of gender, is entitled to South Dakota Parenting Guidelines (they are fairly long and comprehensive, but a typical arrangement is to alternate weekends, and the non-primary parent gets the kids one or two evening per week, or one overnight per week, as well as alternating holidays and half the summer). Please note, these guidelines change depending on the ages of the children and the distance between the parents. Any parent who does not agree with this initial arrangement, may petition the Court for parenting other than the guidelines. In addition, both parents have the right to request primary physical custody of the children, or joint physical custody of the children. There are guidelines, standards, statutes, and rules that apply to all these situations.

There is also one caveat to the above statement - when there is a couple who is not married, South Dakota has a presumption that the Mother is entitled to the initial custody of a minor child. The reason for that is not sexist - it is because we always know who the mother of a child is, but we don’t always know who the father of a minor child is. The father is entitled to request that his paternity be established, and request parenting time. The law does level the playing field fairly quickly - once paternity is legally established, neither parent is entitled to a preference in choosing who would have primary custody.

So yes, on one hand, in unmarried situations, there is a preference for Mothers, right out of the gate. It has occurred where the Mother, resting on those rights, will refuse to acknowledge that the father of the child is actually the child’s father, prolonging her period of primary care. This strategy often backfires - once the Court learns that a Mother has unreasonably denied paternity of her only partner, and has withheld the child or children from that partner, the Court often affords the Father “make up time” to account for the lost parenting periods, and to, once again, level the playing field.

In my experience, however, that’s where the preference ends in custody. Neither mothers nor fathers are favored. I think that’s been the case for a long time, but the underlying facts of society have changed since our parent’s generation. For most older adults, their mothers were their primary caregivers - the fathers worked, the mothers raised the children. Thus, upon a divorce or separation, the children should remain with their primary caregiver, as that is the parent that the child looks to most favorably for safety and affection. This most closely parallels the living situation that the children were undergoing, and the perspective of the child, the child’s “best interests” are the brightest beacon of determining physical custody.

That’s where this blog entry ends, however, as it relates to physical custody of minor children. I don’t believe either parent, other than through his or her efforts in raising children, is given a preference over the other. Those who claim otherwise are often the ones on the losing side of this argument, and in many cases, did not dedicate as much time and effort into child-raising (this could well be because that parent worked more hours, or a second job, and had no choice in the matter, so this isn’t a case of blaming one parent or the other).

There are, however, several areas of the law in which genders are treated differently - none of them, by the way, by law. Just by practice. Just by inherent bias - our belief that men and women are different, and do things for different reasons.

I’ll give you one example to start. I’ve had many cases in which one parent or the other has a real problem with substance abuse. That could be alcohol, sex, drugs, gaming, telephone addiction, shopping addiction, lots of things. In my experience, women who have a serious drinking problem are considered to have a disease, in desperate need of help and treatment. Men who have a drinking problem are considered to be drunks, and non-productive, losers, and a waste of the family’s assets. Men who gamble are selfish and wrong. Women who gamble are seeking an escape. Men who spend 15 hours a week fishing are lazy. Women who spend 15 hours a week shopping for worthless crap that no one needs are pitied, but not punished.

Another area in which differences arise are in TPOs, or “temporary protection orders.” These petitions may be filed by anyone against a stalker or a family member/relationship partner. The petitions of women are granted, in my experience, far more often than those filed by men. Some of this comes, I suppose, from the old fashioned notion that men can take care of themselves in a conflict, but women need to be protected. Please know, I am never, ever advocating for someone to avoid a protection order when necessary, or against the Court granting them where needed. I have noted, however, that similar petitions from men and women have been treated differently in whether they are granted, or not. When a TPO is granted, the person accused of harm is prohibited from contacting that person, directly or indirectly (meaning, one can’t have a mutual friend call the victim and ask for mercy or a dismissal). When those persons live together, the accused is barred from entering that home until there can be a hearing, usually very close to a month out. If a permanent protection order is granted after a hearing, that forced separation can be extended up to five years.

A third difference which appears (again, to me - others may have an entirely different perspective) is in the enforcement of parenting time. When there is an order for parenting time - whether that is by virtue of the South Dakota Parenting Guidelines, or another specific court order for parenting - a parent has the right to bring a motion before the Court to find the other parent in “contempt” of that order if the other parent is refusing the parenting that is court-ordered. When men are denied their parenting time, women are often found in contempt of the Court order. However, their “penalty” for this violation is often a warning not to do it again, a finding of contempt with no penalty attached, not even the attorney’s fees incurred by the father who had to spend money to come to court to enforce his rights. However, if a father withholds a mother’s parenting time, the penalties often extend beyond attorney’s fees to the threat of incarceration, a make-up time for every day missed due to the failure to follow the Court’s order, and a thinly-veiled threat that parenting time may be modified in the future to deprive the father of the time he already has.

One other observation on this topic. The bias that we have in regarding to parenting extends as well to shame. I have often found that Mothers who do not have primary physical custody of their children (whether that is due to the mother’s behavior, or the gravitation of children from Parent A to Parent B in their teenage years), will fail to appear at child support hearings. I believe there is still a stigma attached to women who do not have custody of their children - I hope this ends, and as it becomes more common, I hope the stigma fades. But right now, it does seem easier for a Father to say “I see my kids in summer and on the weekends” than for a Mother to admit that the kids “live with their Father.” There is an equal (and equally wrong) reaction in the person who hears these words. For the father, there is a sense of “Oh, I get it. That’s OK. I’m sure you do a great job when they are with you.” For the mother, the reaction seems to be more of “What the *$%& is wrong with you that you lost your children?”

So no, this is not a Mommy State. We all do carry our inherent biases, though, and they do poke through now and then. The best way to navigate these waters is to speak with someone who has paddled through them many times before.