South Dakota Republican State Senator Tom Pischke joined Richard Luthmann and me yesterday to discuss several family court reform bills he’s hoping to make law.
Primarily, we discussed SB 224, a bill which would create a joint custody presumption. That bill recently passed out of the Senate Judiciary Committee.
Pischke, of Dell Rapids also brought Senate Bill 224 which would provide a rebuttable presumption in favor of joint physical custody of a minor child. That one advances to the Senate floor.
Among those testifying in favor of the bill were single fathers who say joint custody allows for health development of their children and a chance to recover funds that are spent in legal custody disputes that can be used towards their children instead.
“My retirement is gone, my kids’ college funds are gone, all because of a system that is allowing an adversarial aspect versus a kid first aspect,” Nicholas Toth told the committee.
State Senator Pischke said his drive for family court reform started with his divorce.
“I went from a father of three children who had an active role in their upbringing,” He told us, “I ended up basically just becoming a visitor in their lives.”
He told us that his 50/50 presumption was meant to be a “starting point.”
All child custody decisions are governed by the nebulous term “in the best interest of the child”, but in South Dakota, he explained that there are twenty-three “factors” to be considered.
“Senate Bill 224 is basically just a starting point, and it says ‘in your initial determination.’” He told us.
The bill as written is similar to what Idaho currently has on the books.
I would vote for such a bill. I think that both parents should be presumed fit unless evidence is presented otherwise.
State Senator Pischke supports the 50/50 presumption though that is not in the legislation.
“I understand that 50/50 is not going to work in all situations.” He said, “That doesn’t mean that judges shouldn’t put away their bias and start at the presumption.”
This is a fundamental point where he and I have a disagreement.
As with most debates on 50/50 presumption, I played part of a 2021 speech by then Australian Member of Parliament (MP) Graham Perrette.
In Australia from 2006-2023, they had a nationwide presumption of 50/50 custody.
It was different than State Senator Pischke argued for in South Dakota, because the only exceptions were in cases of domestic violence, rather than the twenty-three factors in South Dakota.
MP Perrette made two main points. First, despite the exception of domestic violence, numerous studies found that judges were forcing 50/50 on domestic violence victims.
Second, he said no two families were alike so forcing a one size fits all system made no sense.
He quoted Anna Karenina, “All happy families are alike, but an unhappy family is unhappy after its own fashion.”
I asked State Senator Pischke about this argument. That exchange is below.
“I reject that argument. This bill creates a starting point. It doesn’t say you have to split everything exactly down the middle.” He told me.
In Australia, MP Perrette noted that over 90% of custody arrangements ended with 50/50.
That certainly doesn’t mean that’s how it would wind up in South Dakota or any other state.
However, my worry, and what I verbalized to him, is that by making that presumption, judges believe that 50/50 is best and apply it most of the time.
Of note, we discussed national politics at the end of the interview. State Senator Pischke said he voted for Donald Trump three times, but he did not like his war mongering. This interview happened yesterday, hours before he attacked Iran. That exchange is below.
“He was really good about staying out of foreign wars in his first term. He hasn’t been so good about that in his second term.” He told us.
