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Stephen J. Lee, Forum News Service, Published February 14 2013

ND attorney general challenges Walsh County ‘shared parenting initiative’

North Dakota’s attorney general filed suit this week in Grafton challenging the new and unusual county-wide “shared parenting initiative” passed by Walsh County voters in November and approved by the County Commission in December under its home-rule charter.

Pushed by fathers’ rights advocate Mitch Sanderson, the measure passed last fall — the only one of its kind in the state — says both parents in a divorce have equal parenting and custody rights, given neither is ruled an unfit parent.

Sanderson has fought for such an idea for years and in his own divorce case in Walsh County.

Attorney General Wayne Stenehjem filed his civil action as a motion in Sanderson’s divorce case in Walsh County in which he was the defendant and his ex-wife, Cheryl Harlow, was the plaintiff.

Stenehjem argues that the county-wide ordinance usurps state law giving state courts and agencies authority in divorce and custody cases. He argues alternatively that state law on home-rule charters does not grant a county the ability to regulate matters already under the authority of state agencies.

Sanderson has argued at state and local levels for several years that state law in divorce cases is unfairly slanted against fathers, especially, and presumptively gives wives and mothers special rights in custody and other matters.

He tried to get a shared-parenting measure passed as a state-wide initiative in 2006, but it was voted down at the ballot-box.

In November, the measure passed with 66 percent of the vote in Walsh County, which has a population of about 11,000. The county seat is Grafton, about 40 miles northwest of Grand Forks.

The county commission approved it in December by a vote of 4-1.

A few states, including Wisconsin, Texas and Alaska, have state laws stipulating shared-parenting ideas, according to online sources.

The Walsh County ordinance now in place says that any parent in a divorce should get equal parenting rights in any divorce settlement, mainly in custody arrangements, unless found to be an unfit parent through a court proceeding.

Stenehjem’s motion was signed Monday and filed in Walsh County court on Wednesday as response to the Sanderson divorce case because, the attorney general argues,

Sanderson had asked in his divorce case for the state to enforce the county Equal Parenting ordinance.

Stenehjem’s motion seeks no court hearing but asks that if no response is made within two weeks, that the motion would prevail, effectively outlawing the county-wide initiative.

Sanderson said Thursday he knew Stenehjem would challenge the county ordinance and that he plans to respond to the motion. He can’t afford an attorney but relies on the help of friends with legal knowlege in filing court documents, said Sanderson, who lives in Park River, N.D., as do his children and his ex-wife.

He says state law on home rule charters does allow cities and counties with such charters to “supersede state laws,” except in certain cases involving taxation and budgeting.

The general rule, he said, is “you can’t do less than a state law, but you can do more,” and cites local speeding and no-smoking ordinances as examples of city governments “superseding” state laws.

In a larger sense, he says, the way North Dakota authorities handle divorce and custody cases violates basic human rights of parents, taking their children away without due process.

He and his wife divorced 11 years ago and she was given physical custody of their two children, a son and daughter who now are 12 and 13.

They all live in Park River, where he works as a diesel mechanic and she works as a certified public accountant. “I have several degrees but I took this job so I could stay close to my kids,” he said.

He said he has joint legal custody of his children but that his ex-wife often would not allow him to see his children per court order, although things have improved.

“My kids agree with me,” he said. “They did radio ads for the initiative to help get it passed.”

The divorce decree says his children can spend two weekends a month with him and alternate holidays.

After the county ordinance went into effect, he filed a motion in his divorce case asking the state to enforce the Walsh County initiative, which would allow him to have his children live in his home half the time.

He said Stenehjem simply “wants to protect their corrupt family law system,” which he says is an income-generator for state agencies.

“They should leave the vote of the people alone. The people have spoken.”

Challenge expected

Sanderson said today he knew Stenehjem would challenge the county ordinance and that he plans to respond to the motion.

He cannot afford an attorney but relies on the help of friends with legal knowledge in filing court documents, said Sanderson, who lives in Park River, N.D., as do his children and his ex-wife.

He said state law on home rule charters does allow cities and counties with such charters to “supersede state laws,” except in certain cases involving taxation and budgeting.

The general rule, he said, is “you can’t do less than a state law, but you can do more.” He cites local speeding and no-smoking ordinances as examples of city governments “superseding” state laws.

In a larger sense, he said, the way North Dakota authorities handle divorce and custody cases violates basic human rights of parents, taking their children away without due process.

He and his wife divorced 11 years ago and she was given physical custody of their two children, a son and daughter who now are 12 and 13.

They all live in Park River, where he works as a diesel mechanic and she works as a certified public accountant.

“I have several degrees but I took this job so I could stay close to my kids,” he said.

He said he has joint legal custody of his children but that his ex-wife often would not allow him to see his children per court order, although things have improved.

“My kids agree with me,” he said. “They did radio ads for the initiative to help get it passed.”

The divorce decree says his children can spend two weekends a month and alternate holidays with him.

After the county ordinance went into effect, he filed a motion in his divorce case asking the state to enforce the Walsh County initiative, which would allow him to have his children live in his home half the time.

He said Stenehjem simply “wants to protect their corrupt family law system,” which he says is an income-generator for state agencies.

“They should leave the vote of the people alone,” he said. “The people have spoken.”