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Divorce Dilemma: Should States Change Laws to Mandate Presumptive Joint Custody?

By Katie Allison Granju |

All over the country, Fathers’ Rights’  groups are aggressively lobbying for changes in state laws to create a presumption of joint custody when parents divorce. What that means is that if a married couple with children splits, family court would start with the assumption that legal and physical custody would be always and automatically be divided 50/50 between the mother and the father. If one or the other of the parents did not believe that such a custody arrangement would be in the best interest of his or her children, the burden would then fall to that parent to proactively make the case to the court as to why the presumptive joint custody should be modified.

I think this is a Very Bad Idea.

Children are individuals.  Parents are individuals. Family situations and yes, even divorces are highly individual. While it may be more time consuming for the family court system to help divorcing parents mediate the individual custody agreements that are right for their own families, this individual approach is always going to be in the best interest of the children, which is supposed to be the guiding principle of family law.  In the unfortunate event that a mediated custody agreement can’t be reached by both parents on the front end of a divorce proceeding, it is also in the best interest of the children – not to mention fair for the adults involved – for each parent to have the chance to make his or her own case before a judge as to what type of custody arrangement is best, and why.

While Fathers’ Rights groups argue (not that successfully, in my opinion, but I will save that topic for a follow-up blog post)  that current custody laws discriminate against them actively and often, a system of presumptive joint custody would create obvious hardship and discrimination for mothers who – rightly or wrongly –  are still very often today the primary caregivers to their children, particularly younger children.  With presumptive joint custody laws in place, many mothers who do serve in this primary caregiver role with their kids, and who might want or need a divorce from their husbands would decide they couldn’t bear the thought of being automatically separated from their children half the time, and thus, would remain in bad or even dangerous marriages. Abusive and controlling men could certainly hold this automatic 50/50 custody law over the heads of their wives as a way to prevent them from leaving.

I also think that presumptive joint custody laws may actually encourage more strife and negativity in divorces with children because in order for one parent to make the case that he or she should be awarded some other type of custody – even if the modification sought would be minor – the most obvious way to accomplish such a change would be to proactively run that other parent down via the court system. The parent seeking a change to a presumptive status set by law would have to invoke a shock and awe approach to get a judge to modify something that statute has decreed.  With traditional custody laws, this type of adversarial legal wrangling that pits parent against parent and puts decisions in the hands of a judge only happens in those cases where the systems in place to first help the parents come to their own, more amicable agreement fail.

So how about you?  If you are a divorcing or divorced parent, what has your experience in the family court system been like? Where do you come down on the idea of changing states’ laws to require a presumption of  automatic 50/50 custody when parents with children divorce? Do you believe that these changes are needed to redress widespread discrimination against fathers within the current family court system? Or do you think that presumptive 50/50 custody set by statute would better allow some men to bully and control the mothers of their children? And how about child support? Is it possible that some parents are supporting the presumptive custody laws because it would make it less likely that one parent would end up paying child support to the other? Tell me your thoughts on this hot topic in the comments below.

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About Katie Allison Granju

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Katie Allison Granju

Katie Allison Granju is the married mother of five children, ranging in age from toddler to teenager. In addition to blogging for Babble Voices, she also publishes her own blog, Big Good Thing. Katie also enjoys working in her flower garden, riding her bike, and feeding the chickens she keeps in the backyard of her family's large Victorian house. Read bio and latest posts → Read Katie Allison's latest posts →

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76 thoughts on “Divorce Dilemma: Should States Change Laws to Mandate Presumptive Joint Custody?

  1. Perfect Dad says:

    All your arguments about the mother needing or wanting a divorce can be made for the father as well. What about the father who needs to get out but can’t because he will lose ALL access to his children? At least this way he may get 50-50. You’re advocating a global rule for one scenario: The suffering wife who needs to get rid of her husband. Abusive or negligent fathers shouldn’t get first priority for the kids, but neither should negligent, vindictive, or selfish women for no reason other than that they can.
    Of course we all know that the best solution is to marry the perfect partner and stay married.
    Perfecting Parenthood

  2. Cora says:

    Katie, I respectfully disagree with you. I am in a situration where we have a very amicable relationship with my husband’s ex-wife, but we do feel frustrated by the situation. We do not have 50/50 custoday (it’s more like 60/40). My husband had to fight hard to get that much during mediation as she told him she couldn’t stand being away from the child. That is not a fair way to go about it. In addition, we do not have a problem paying child support, but that is not a fair system. If we have the child all day we do not get “credit” for that–only for night’s spent. Also, in the state of MO the standard is every other weekend and every Wednesday. How is that more fair than 50/50? I understand the abuse concern, but that can not be the guiding reason not to give father’s the right to have 50/50 custody. In addition, because he does not share physical custody we have no say in where the ex-wife lives. Ideally, families would be able to work this out. However, far too often, divorce leads one parent to hold a grudge against the other. Unfortunately, custody and money often are the way to punish the other. I’m not saying that 50/50 would remove the annimosity, but it would allow both parents to feel a complete part instead of just a part time parent.

  3. Lindsay Q. says:

    NO, I think that this is a terrible idea. I’m currently in the middle of a custody battle with my 2-year-old daughter’s father. He left us out of the blue about nine months ago and wants to keep her 50/50. He wants us to switch her every two days, and I think that’s just ridiculous. He purposely moved one mile away from our condo just to be closer, but I am currently in the process of buying a house that would be approx 30 minutes away from where her father lives. If we live in different school districts, how could we share 50/50 physical custody? My ex’s motives are child support; if we share her 50/50, I would receive practically nothing in child support. And since he is not responsible enough to purchase things for her (he doesn’t even know what size clothes/shoes she wears, he relies on his family members to purchase necessary items for her), I am always the one buying clothes/shoes/daycare necessities. Without my support from him, it would be much more difficult to provide for her. Also, how can kids handle a 50/50 physical custody split? To be in a different house every two days? Maybe it works for some people, but I can’t imagine putting my daughter through that. Her dad is currently seeing her every Wednesday night and every other weekend, and she’s even having a hard time adjusting to THAT as a 2-year-old. I can’t imagine how confused and upset she would be if she was away from home every two days! Ugh, I could rant for hours about how ridiculous this 50/50 physical custody crap is, but I’ll quit.

  4. GP says:

    @PerfectDad: “the best solution is to marry the perfect partner and stay married…” close, I’d say the best solution is to realize you’re *not* going to marry the perfect partner but don’t get divorced unless your partner is abusive or a criminal…I know, it’s all subjective, but can the percentage of folks who get divorced really have THAT serious of issues, or have they just change their minds or moved on or had unrealistic expectations of what marriage is supposed to be in the first place? OK that was a major digression. At first I totally saw Katie’s point, as that is what we tend to see more of, I supposed, “bad” men and put-upon women (?) Or, is that just a stereotype or myth? From a legal perspective and as a matter of fairness, maybe the presumptive 50/50 *is* a good idea. Maybe people *should* have to prove that the other person is a royal ass and they’re not divorcing for frivolous reasons?

  5. goddess says:

    Why? Are they assuming that child-care was evenly split while the couple was married? It’s folly to presume it and even greater folly to impose it after divorce. Better they find out what the actual division was before the divorce took place.

  6. GP says:

    Oh Lindsay…that puts a whole other view on this! Sorry! If HE is the one who left out of the blue, then why should he get to see her at all unless you decide he can? He left!?!?!?! OK…I just don’t get this divorce thing.

  7. GP says:

    Yeah, Goddess has a good point too. I changed my mind!

  8. Jen says:

    I agree. I don’t think you can apply this standard of 50/50 split to all cases. In my case my son’s father never sees his son. If he was automatically granted 50/50 custody it would reduce the amount of child support he owes, which he doesn’t pay anyway but that’s another issue. I think the basic standard of doing what is best for the child should stand and then the judges in individual cases can make the determination on custody arrangements.

  9. goddess says:

    I agree GP, and I’ll add that people seem to have no tolerance or patience for the natural ups and downs and ebbs and flows- nor do they use those times to actively improve their marriages and nurture them.

  10. Mir says:

    Like Lindsay, I think a presumptive 50/50 is a bad idea because it doesn’t take into account the very real logistics of that sort of back and forth, and I think it’s the rare situation where that’s not extremely difficult on the child(ren).

    In the state where I divorced, there is a presumption of joint legal custody unless evidence is presented as to why this shouldn’t be so, but physical custody is delegated on a case-by-case basis (and is usually done as primary/secondary). To my mind, this is a much more logical approach. Unless you have 1) two extremely amicable parents who 2) live on the same street, the level of disruption to a kid’s life necessarily inherent to 50/50 custody is unlikely to be anything but one more way that divorce sucks for them.

    And yes, I say this as a parent whose ex wanted the kids half the time, and refused to bend or acknowledge how hard that would be on them. So mediation failed and we went through a lengthy (not to mention expensive) court process so that the judge could decide that no, that was not in the kids’ best interest. I’m eight years out from my divorce, now, and my kids’ dad still believes I “stole away” his kids “out of spite,” rather than that I was just trying to give them the most stable option in a crappy situation. Without going into specifics, let’s just say I stand by my choices as the ones that put the kids first (and note that there were two rounds of court battles, with two different judges, and my position was granted both times).

  11. Clisby says:

    I think you need to clarify your question. Joint custody does not necessarily imply 50-50 physical custody.

    Once you straighten that out, you can always try to make your case against it. You haven’t done it yet.

    Yes, I think the presumption should be for joint custody, and in general, why should it not be 50-50? Perhaps you’re not familiar with situations like Cora describes, but I’ve seen them – like a friend in Atlanta whose remarried ex-wife was allowed BY THE COURT to take their daughter with her when she and her new husband relocated to California. This is not a father who doesn’t pay child support or has been judged unfit – the updated agreement was that he got his daughter all summer. But this was a travesty. The correct judgement would have been: “Honey, if you want to move out of Fulton County, GA, go right ahead – and your daughter is now 100% with her father. You can see her during the holidays.”

    And to Lindsay Q: So your child’s father is doing the right thing by moving closer and you’re doing the wrong thing by moving farther away? Maybe you need to think about this some more. 50-50 custody does not require the child moving every 2 days. It could be implemented by the child spending alternate weeks with each parent, or alternating 2-week periods. Of course Wed. nights and alternate weekends are upsetting for her – that is a TERRIBLE idea.

  12. Logan says:

    I agree that an automatic presumption of 50/50 custody does not take into account the needs of individual families and children. Fathers have every right to be equally as involved as the mothers of children in a divorce, but it’s the child’s needs that need to be the deciding factor, not the rights of either parent. I have a profoundly disabled child, and overnight visits with her other parent were a great hardship on her. Insurance would not pay for two hospital beds, two feeding pumps, two of everything she needed just to be away from home for a few hours, so packing her up for an overnight was like packing for a month to most people. Her other parent quickly realized this and we stopped overnights. It was what was best for her. The needs of the child need to be first and foremost in custody cases.

  13. Mandy says:

    I believe that each situation warrants an unbiased person to evaluate each divorce/custody hearing. Sometimes the dad is a better choice. Sometimes it’s mom. If the parents CAN agree to 50/50 then it should be given a go. I do think that many times mom is given the custody of the children and it’s not a great idea. I believe that fathers should get an equal say in custody instead of mom being the person that gets it. We just need more unbiased judges in these cases and will actually look at dad as a person who can have full custody.

  14. Jen says:

    What if one person is willing to “actively improve their marriage and nurture them” during those “natural ups and downs and ebbs and flows” but the other person is not. Should you stay at that point and be so miserable that it is effecting your health and is having a negative impact on your child. I was not “abused” so to speak in my marriage and I was willing to try counseling and other methods of working on our relationship but my ex was not. At that point and after a ton of soul searching, crying and advice I decided I was better off on my own if not only for myself but for my child. You can’t really judge until you have walked in someones shoes. Everyone is different and ever situation is different.

  15. Belinda says:

    In my divorce I get the standard whatever money. He gets the standard whatever parenting time (such a stupid phrase). We have 50/50 custody. He *takes* the kids ONE time a month for dinner about 3 hours. The past two months he had the youngest for a weekend one weekend each month. I get NOTHING extra. If I withheld the child from him (never have never will) I would get in trouble. BUT if he doesn’t see his child for his *parenting time* NOTHING happens. This is NOT right.

    I have to do everything. Deal with teachers, teens, Dr’s, lessons, activities, and he gets to be super dad once a month. Or when the kids whine to him.

    During the divorce I said I cannot afford to finish raising the kids on what I am getting so he will just have to step in and do it. NO I can’t make him take the kids. So the kids and I are forced to live like this.

    I think the laws have swung so far in favor of the fathers that it is now the mothers and children who are losing out worse then the fathers ever dreamed of.

    Belinda, whose attorney ended up really being the ex’s assistant attorney.

  16. Elliott Kim - 21st Century Dad says:

    This is a misguided attempt to fix the other injustices and disparity in the family court system. It’s a good basis from which to start working out a parenting agreement, but mandating it? That reeks of an authoritarian nanny-state mentality. Just like you said, every divorce is unique.

    I will always advocate for fathers. There are clearly men who are not living up to their responsibilities, and they should be held accountable. I am not one of those men. Men are not just glorified babysitters. Now that my daughter is weaned, I am finally on equal footing with her mother on the level and depth of parenting I can provide. I will never declare myself a “better parent” than her mom. We each have strengths and weaknesses in our roles as parents.

    Just so you all know, the parent paying child support does get screwed:

    Child support comes out AFTER taxes.

    Child support, while it is very much an expense of taking care of a child is NOT deductible on your taxes as childcare expense.

    The parent paying child support is also mandated to provide health insurance for the child.

  17. May I just say that this is perhaps the most thoughtful and interesting discussion of diverse and well-argued comments that I’ve read in a long time? This is particularly true given the hot-button nature of the topic. Rock on, y’all! Discussions like these are one of my fave things about being a blogger. – Katie

  18. Susan S. says:

    the best arrangement I’ve heard is for the parents to live out and the kids to live in. Parents travel from an apartment to the house where the kids live. This shares costs, travel, time, etc.

  19. Marc Danziger says:

    Katy, as a twice-divorced dad with three sons I couldn’t disagree more.

    I think you need to step back and think about what’s in the children’s interests, rather than take a narrowly gender-partisan view that automatically privileges motherhood over fatherhood.

    Yes, all families are different; but why then does it make sense to automatically presume that having children spend most of their time with the mother is automatically the right answer.

    This is a bigger topic than will be address in a blog post and comment, but I really want to encourage you to step back and think again about what you’re saying (and how you say it – the scare quotes around fathers rights groups is beneath you).

    As a last word, thank you for writing so beautifully and honestly about Henry. I asked my youngest Isaac to read it, and we had a wonderful and deep discussion that grew from Henry’s story and your pain.

    Marc

    1. Marc – You are right about the quotation marks. I am going to remove them. Thanks – Katie

  20. Abby says:

    What happens if they live in different school districts? How does that work? Or if mom can’t take the kids to pre-school but dad can? Or they have dance lessons or are in the school play, or have a 13 year old slumber party that they will DIE if they can’t go to and only the not on parent can take them do to scheduling conflicts? I know that it isn’t always possible, but individual mediation to set down an agreement that is flexible and grows with time seems like a realistic approach for most. Why doesn’t the court shoot for this? I know it sounds expensive, but is it any more expensive and time consuming for the courts than laying down an arbitrary rule that needs to be legally adjusted in most situations.
    woan.blogspot.com

  21. B says:

    A few years ago, I had the unfortunate experience of listening to Michael Newdow speak for an hour about custody issues and fathers’ rights. (NB: if you aren’t familiar with Newdow but his name rings a bell, he gained national attention for litigating against the inclusion of the words “under God” in the pledge of allegiance at his daughter’s school.) Newdow is a staunch advocate for 50/50 custody splits, and listening to him rant about them for an hour made my blood boil so badly I could barely sit still. My parents divorced when I was 13, and spent the next several years waging a bloody and intense battle against each other in which they used custody over me as their mutual weapon. I split my time between their houses as close to 50/50 as it was possible to achieve, and it was hell. Pure hell. Changing houses every Friday made me feel like I had no home, not two homes. I was always either coming or going. There were a lot of complicating factors at play, but the custody arrangement itself was a really crappy solution to the problem of where I should live.

    Newdow’s speech about his right to retain custody exactly half of the time struck a nerve with me because at no point in his impassioned argument did his reasoning revolve around his child; every reason he gave for giving exactly equal time and treatment to both parents had to do with him him him. What HE deserved. What HE needed. What would serve HIM best. He openly mocked and derided the concept of “the best interest of the child” as being a foolish measure of whether a custody arrangement was suitable for court approval. I’m sorry to say that I’ve heard this same tone from several fathers’ rights groups since, and this is very troubling to me. Children don’t instigate divorces: their parents do. It strikes me as the very height of selfishness and self-absorption to believe that your children should somehow bear the brunt of accommodating *your* needs in divorce/custody situations.

    Personal biases aside, let’s be realistic here. Can anyone think of any other circumstance where a government-imposed, one-size-fits-all mandate actually accomplishes the stated goal?

  22. Clisby says:

    You also should change the misleading headline on your mamapundit post, or rewrite the Babble post.

    “Should States Change Divorce Laws to Mandate Automatic Joint Custody?”
    (answer: of course not)

    is not at all the same thing as:

    “Should States Change Divorce Laws to Mandate Presumptive Joint Custody?”
    (answer: why not?)

    Also, to the poster who wondered what would happen if the parents live in separate school districts: The custody agreement should specify in which school district the child(ren) will attend school. If one of the parents wants to live outside that school district, I guess he/she will have to either give up custody or do more driving. Nothing unfair about that.

  23. goddess says:

    @Jen: Depends. When our son died and our marriage was read to hit the tubes, I had to go to therapy even though DH was busy in denial and get myself in a better place so that I could step back and do what needed to be done to save the marriage. I can say that it was months before DH was ready to actively take a part in improving things,. But some 16 years later our marriage is stronger than ever. That doesn’t mean to say every marriage needs to be saved- and I really ought to have said “may people”. For that omission., I apologize
    Each marriage is different, and each person has to take stock and determine whether it is time to dig in and work, or time to cut their losses. I just wish there was more of an awareness and an acceptance that sometimes things suck- and escape- or a different partner- will not be the end-all and cure-all, and there are some times it makes more sense to get quiet and work on it.
    I was not judging you- but making a statement in general- and in general, it is what I see..

  24. Cora says:

    It is very interesting reading all of the comments. The item that is hard for me to understand is why it is okay to presume the mother should have the most custody. When you look at the standard custody agreement in my state it presumes mother as primary custody with father as visitation. Having the father in the life of the child as an equal player is important. The father should not have to fight for the right to see their child, yet in the standard agreement that is the case. Are their deadbeat dads who don’t want to be in the life of the child? Sure, but the good ones shouldn’t have to fight for more than just a visiting babysitter. Why not assume both parents are equal as I would like to assume most are. We are currently hoping to move to 50/50 and it will be a week on week off option (which Katie I know your two children do with their Dad). We will still be responsible for paying child support since my husband make more, and we are still responsible for all transportation (about 20 minutes each way). We are fine with having that responsibility if it means we can have the child more. In addition, we attempt to be engaged, but when you do not have primary custody it can be a challenge for the school districts to support your status as active parent.

  25. Jen says:

    I liked the comment above about separate parent apartments. The spouse and I are not in any danger of divorce, but we decided long ago (watching a few other family’s horrors) that were we to split up the children should live in the house and we should be the ones schlepping our clothes and shampoo and books and, and, and…back and forth to another living space. Which would probably have to be a shared small apartment in this neighborhood, since who could afford a house and two rents?!

  26. Jen says:

    @goddess: No offense taken by your comment. We all usually look at these types of questions from our own circumstances or of those around us. I wish more than anything my son had an involved father who wanted to help me raise him physically, emotionally and financially but sadly that is not the case. I know there are great men and fathers out there, my step-dad and my brothers are perfect examples and they have all stepped up to be positive male role models in my son’s life. I know that I am somewhat biased with my opinions on divorce and child custody because of what I have experienced. Up until very recently I have tried with everything I could to ensure that my son has a relationship with his father but it was like fighting a losing battle. I have since decided that I cannot force his father to have a relationship with him and that I have enough to deal with in raising my son alone so I am no longer putting any extra time and effort into it. I can only hope that one day he will grow up and realize what he is missing before it is to late to salvage his relationship with our son.

  27. Carla says:

    As between myself and my ex-husband, I am the primary caretaker of my children and have primary physical custody, although my ex-husband has joint legal custody. I have to say, though, that I disagree with your conclusions here. The reason for the sought statutory changes are that in *many* cases, fathers’ rights are basically thrown out the door in family court. I have seen a *lot* of male friends (fathers and former children) suffer from the presumption that the mother is always the best caretaker. I have male friends who suffered emotional and/or physical abuse from their mothers who did everything they could to keep the father from seeing his children. I know men who are fantastic fathers but whose wives–out of spite or other unacceptable reasons–did everything they could to poison their children against the father and fought for years to get around custody agreements. Presumption is just that–presumption that, on average, fathers should be given equal rights to mothers. I think one big reason more fathers *aren’t* involved with their children is that they haven’t been given the chance to do so, because our society *assumes* that they aren’t capable, dismisses their importance in their children’s lives, etc. I see article after article talking, for example, about how babies know their mother’s voices at birth and how critical the connection is–but only rarely is the importance of fathers even *mentioned* in these articles (even though the research is clear that father involvement and support is crucial for optimal development). We have to change the way we look at father/child relationships, and a presumption of joint custody is a huge step in doing that. A presumption doesn’t mean that in abuse situations (from men or women) that the courts won’t change the presumption. It also doesn’t mean that factors such as breastfeeding won’t be taken into account as to the actual time spent with each parent. It just means that there won’t be an inherent judicial bias against men–which I think is very important, as does my now-husband, who is a fully equal partner in our marriage and in raising our daughters (two of whom are his step-children).

  28. Lindsay Q. says:

    @MIR, I think that the logistics of the whole thing is one of the worst parts. I’m not moving further away from my ex maliciously. I’m living in a condo that he and I rented together, but he has since moved out of it. We moved here together, since it was in the middle of both of our job locations. Currently, I’m a 30 minute drive from work. When my lease is up, I’m moving into a house that is 1.5 miles away from my office AND it’s in a much much better school district. The move will be in me and my daughter’s best interest, and I have every right to better our lives. I just feel like a 50/50 physical custody situation would force us to either live on the same street or be continuously commuting back and forth to each other (which is a waste of time AND money).
    @Goddess, that’s another great point! When my ex and I were together, parenting was NOT split 50/50. More like 20/80 with me doing most of the care for our daughter. I also took care of all doctors appointments, day care paperwork, etc…There’s no way he’d be able to keep up with parenting 50% of his time, when he’s only used to doing minimal amounts of parenting.

  29. Ellen says:

    The first thing that should happen is that all matters of child custody and support be removed from the authority of the judicial system. Lawyers and judges are probably the last people on earth that should be deciding such matters. Just putting the whole thing in the courtroom creates a combative environment in which one parent “wins” custody and the other “loses”. Having been the unfortunate parent against whom the other used the children as a weapon, I can attest that in situations like that, it is not love for the children or concern for their well-being or “what is best” that is the motivation for such monstrous behavior – it is power and control over the other parent, the adversary.

    Divorce is already a very emotionally charged situation, and the participants more often than not act out their anger and hurt by making the custody issues the battleground. A mediator trained in defusing situations that are becoming contentious and getting the two parties to work together FOR the children, instead of against each other, would result in better outcomes for all involved.

    Of course, the ideal scenario would be that we stop treating marriage so lightly, and give it the due consideration, respect and reverence that a covenant with God demands, and live under His guidance as husband and wife.

  30. Julia says:

    In theory, I agree that each case should be treated separately but custody is too often rewarded to the mother for me to believe it’s fair. I think presuming joint custody with either parent allowed to appeal and forcing them to take on the burden of proof would in practice work out much better. I know too many fathers who are afraid to divorce abusive wives because they’re afraid (and very rightly so) of losing custody of their children. I also notice you don’t address in your post-it’s not only women who are in abusive relationships.

  31. Sarah says:

    I’m baffled at all the arguments against assuming 50/50. shouldn’t that always be the basis to start from, and then each case is decided based on what is best for the case. Saying that is a one-size-fits-all is dumb, because ANY starting point is a one-size-fits-all, and its better to have it be one that is equal than one that is unequal.

    Why would you start off assuming anything other than equality between the parents?

  32. goddess says:

    Nope. Look into how the care was give BEFORE the divorce and THEN tailor the custody accordingly.

  33. Clisby says:

    I don’t see how you can move issues of divorce/custody outside of the judicial system, although that doesn’t preclude mediation. Marriage is, above everything else, a legal contract. Yes, there are raging emotions involved, but from a legal standpoint, dissolving a marriage is like dissolving a business partnership. The parties have legal rights, legal obligations, and (perhaps) competing interests. That’s what the legal system is for.

  34. Clisby says:

    Goddess: Nope, you don’t base it on how the care was divided before the divorce. That would imply that no one in his/her right mind should tolerate a spouse being a stay-at-home parent.

  35. CT Mom says:

    It is the role of the family court in a divorce proceeding with minor children to have there best interests in mind. Since every divorce is different, it is ridiculous to impose a one-size-fits-all approach. In a perfect world, all divorces would be amicable and all child rearing etc. would be split 50/50, heck all marriages would be, but we all know that is not the reality.

    I also think father’s rights groups often ignore the protections that they do get. One example: in most states, visitation of some form is guaranteed unless it can be proven that abuse or wilfull neglect against the child occurred. Does not matter if the mother was abused.

  36. paula says:

    I’m torn on this, but I think that goddess make an excellent point…”Look into how the care was give BEFORE the divorce and THEN tailor the custody accordingly.” but I also know that situations change…

    I know many many dads who (like my own when my parents separated long ago) are ill-equipped to deal with the day to day aspects of child rearing. Having said that, I have watched one dad recently, who didn’t play a big role when together with his wife, make a huge shift in in his attitude and practices in parenting when he has his kids 50 per cent of the time…you might say he rose to the challenge. I think it would be a shame if he had been penalized becasue of the care he gave before, simply because he was the main breadwinner and simply not home as much. Even if he wasn’t perfect, he has now made very positive changes in order to do what’s best for his kids.

    I think my point is that there’s no cut and dried answer. there are so many different situations. My dad was totally univolved. My husband, is entirely invovled, and would deserve to remain so if we ever went our separate ways.

    I suppose we all have answers, often based on our own experiences. I agree; it’s not right to assume the mother is the better parent, but she is often the more involved parent.

  37. goddess says:

    Well geez then I guess the fathers better start equally parenting while they are married Clisby. I’ll let my hubster know that. Then I can get some free time after I finish MY work.like he gets after he clocks out.

  38. Debbie says:

    @Lindsay Q. – maybe it is not malicious, but moving your daughter what you seem to freely admit is a 60 minute distance from her father’s place of work is totally changing the deal. To a great extent for your benefit because your daughter is not even close to being in school yet. Not much different than leaving out of the blue. And few things in life are truly out of the blue. You state that you can’t imagine how switching homes could possibly work and that is part of the problem. Switching between two homes can work for kids if the parents both have good attitudes – Katie’s kids do it and my daughter does it, and has done it since she was two years old. Time with a parent is what make a connection and dads figure out how to connect even if they get off to a slow start with adjusting to visitation. Good wishes to both you and your ex being able to let go of anger and sadness and step up on making it so she can see both of you as much as possible.

  39. Sarah says:

    I agree – you can’t base it on what the arrangement was before the divorce. If a parent is stay-at-home before the divorce, are they not going to get a job afterwords? And the parent who worked will have to be more flexible with their work schedule since they don’t have someone who can pick up the slack. The only thing that should dictate care after the divorce is a) is the parent willing, and b) is the parent capable. Other than that it should be 50/50.

    When you are married, child care is a team effort. How each team approaches it is different. One person may take the majority of the child care, while the other person works. But to say that because of that decision the person who works forfeits their rights as a parent, or is somehow less of a parent, or even less capable, is beyond wrong.

  40. GP says:

    Uhm…not to take sides, but I kind of have to since people are jumping into specific cases…in Lindsay’s case, he CHOSE to leave the family, he left her and he left his kid, so, it’s really incumbent on him to make the effort and she doesn’t have to worry about making it easier on him. I don’t get what you’re saying, Debbie, about her move “changing the deal” because when he decided to split, THAT was “changing the deal”…man oh man, this shit is not something I would EVER be willing to deal with. Don’t tell my husband this, but he’d have to do some pretty awful stuff, like criminal, for me to bother with all this madness. People should be flexible and have open relationships, too, if that’s what it takes, to keep a “marriage as social contract” together and keep kids in a solid place, but, IMO, children need A HOME and not to be shuttled around just cause adults change their minds about stuff.

  41. GP says:

    All this also illustrates why no-fault divorce is a bad idea. That said, if my man wanted to leave me, I would say, fine, go, but you’re leaving your child, too. And I wouldn’t care about his damn money. You either love us and want to be a family or you don’t. Fractions of that are bullshit. (I know many people are living fractions of that, and power to you, but, it’s not for me…)

  42. Babs says:

    You can have presumptive joint custody on the books without equal access language. The two do not by definition go hand in hand. Presumptive joint means frequent and regular contact. D.C., where I reside, is one such jurisdiction where presumptive joint does not stipulate 50-50.

  43. Kirsty says:

    Oh Lordy, this is a touchy subject for me… Sorry, this will be very long…
    I’m British, and I’ve lived in France since 1992 (yeah, I’m old). I spent 14 of those years – 1997 to 2010 – living with a French man and we have two lovely little girls, one aged 9, the other about to turn 7. My ex and I split last May. It’s been horrendous. I’ll spare you the details, but he walked out on me because he found me “impossible to live with”, accusing me of poisoning him, trying to “destroy his brain”, “turn everyone against him”, etc. He slapped me, insulted me, insulted me to my friends… I knew he was psychologically unstable, medical professionals have since confirmed it but he refuses to believe anyone, refuses to accept any kind of treatment, etc.
    Initially, he wanted 50/50. I said no way. First, I think the concept of making 2 little girls live out of a suitcase the whole time, living in two different homes, alternating weeks etc. is ludicrous, and horribly destabilising. Second, their father, though undoubtedly a good father in many respects, is woefully incapable of looking after them – he has no job, no income, horrendous debts, no realistic chance of finding work, he lives in a one-room flat… I have a full-time job working from home (so very flexible hours), I live 5 min from the girls’ school, their activities and many of their friends, and they don’t remember ever living anywhere else. When we were a real family, I did all the clothes buying, hair brushing, school bag preparing type stuff, and still do. He’s disorganised, chronically unpunctual… If 50/50 were the basic go-to rule, I’d have had to drag all this through the courts to prove it’s a horrible idea; the girls would no doubt have found out about their dad’s mental problems and treatment of me (I’ve never told them the whole truth, though I’ve written it down and will give it to them one day, far in the future). I would have hated to have had to do that. I’m unbelievably grateful that my girls still live with me – their dad sees them whenever he wants (he’s not great either at helping me out when I need him to take them, though he has done it a couple of times), he probably sees them more than some dads who work long hours. He gets to do most of the fun stuff, while I do laundry and homework and tidying up and that kind of thing. I think I’ve been incredibly reasonable. I obviously don’t ask for child support, even though things are very difficult for me. This subject brings me out in hives – just the thought of leaving the girls with him terrifies me. What if one day he starts being like he was with me, with them, accusing them of destroying his brain? I’m sorry, but I think this 50/50 is crazy, totally crazy.
    I’m struggling, really, really struggling, I’m exhausted and lonely and very miserable in this new life, but I’m holding it all together for my girls. They see their dad, and that’s enough. He can’t look after them, he’s not capable, and I’m glad they don’t need to know that (though they’re realising already how unpunctual he is, how forgetful, how unreliable).
    Sorry to have been so long-winded and incoherent.

  44. Erin says:

    I don’t think joint custody should be mandated. However, I think it should be encouraged and assumed, unless one of the parents cannot parent. My parents divorced once I was grown up. I cannot imagine a childhood where I saw my father less than 50% of the time. Only 50% of the time would have been hard enough. My mom was a functional parent, but my Dad was my emotional rock.

  45. Michelle says:

    In Canada there is a difference between legal and physical custody. My ex and I have joint legal custody, meaning we are both equally responsible for decisions relating to our sons heath, education and religion. Our son’s primary residence is with me and he visits his father. The split is somewhere around the 35/65 mark.

    Personally, I think that joint legal custody should always be the default. Why should any parent be in a position where they have to file a motion in order to obtain the right to make legal decisions for his/her child? How silly!

    You could argue that men should get default custody due to their (generally) higher incomes and ability to provide a financially more secure home for the child. And yet we don’t. Why? Because that would be silly too.

  46. radmama says:

    Hmmm. Well in my part of Canada, it’s difficult to get sole custody; you have to have a very strong case. Joint legal custody is the norm although physical custody arrangements vary. My personal situation is joint legal custody, but I have primary care and control.
    That being said I side with Katie on the issue- divorce is very personal and all families are different. 50/50 physical custody would not have worked for anyone in my family and for that to be the default choice would lead to costly legal shenanigans to alter. Again, something we did not need.

  47. Jenny says:

    As the child of divorced parents, I think joint custody for young children is a terrible idea. If your children are older and choose to live in 2 different homes that is fine. If they are young then they need at least 1 real home.

    If you could make the shared house work that is great. However, I don’t see how it works if either parent has a second or third family. There is no 1 easy answer.

  48. Laura says:

    I am saddened to see comments such as Lindsay’s. You have a Father who wants to see his daughter and all she can see is her own hurt feelings because he left her. Maybe he doesn’t know the child’s size because you never let him see her?

    I am a divorced Mom with 50/50 custody and I DO NOT receive child support (by my choice). Why? Because we both have expenses. Now I get in every situation this doesn’t work, but if parents going through divorce could stop putting their hurt feelings ahead of what is best for the child this world would be a better place.

    If at all possible children need both parents in their lives equal time. I can’t tell you how many men I run across who only see their children every other weekend and on Wednesdays. They would love to have more time, but the Mother make excuses why the child can’t or will refuse to pick up the phone when the Father calls.

    Women we need to all understand that when we have a man who is willing to step up & be a parent we need to let them.

  49. Jen says:

    I grew up with divorced parents. They were divorced when I was 2 and they split custody 50/50 until I was 13 and my mother moved out of state. I do not remember a single instance where split custody created issues from my perspective. I’m sure that there were issues, but it was between my parents how those issues were resolved and they didn’t let it affect us. In addition, multiple people have commented about living in different school districts. My parents lived 20-25 minutes apart and if my dad had me he dropped me off at school on his way to work. I am married and have a child and I know that without a doubt it I were to divorce I would split custody 50/50 with my husband. I think it’s in the best interest of the child to spend as much time as possible with each parent. It is the parent’s responsibility to ensure that it is a smooth transition for the child. That said, I don’t think that it should be mandatory, I do think that it should be evaluated on a case by case basis. If you choose to have children with a spouse though, it is your responsibility as a parent to make a joint custody situation work well for your children. Children are adaptable and I think that what’s most important is keeping your children sheltered from your marital issues as much as humanly possible.

  50. Marc Danziger says:

    I’d hope that the folks here could step back and look at what’s been written with a cool eye.

    What I see – and I’m happy to own my own bias as a divorced dad – are mountains of resentment at the former mate, and rationalizations that take the place of frankly looking at what the children need.

    What they need – with the rare exceptions of abuse, addiction, or other similar behaviors which disqualify someone from parenting – is to be a healthy family, even a family where the two adults don’t love each other any more and don’t want to be together. That trumps any of our (adults) selfish anger at our former mates, or any points-scoring we may do against them.

    I’m not saying don’t divorce; I’m saying acknowledge that even living apart, you’ll be a family until the kids are out of the house and even afterward. You can choose to be a toxic family – or not.

    Winning – as defined in most of the messages upstream – doesn’t solve that problem, it makes it worse.

  51. Mike Newdow says:

    Abby asks, “Can anyone think of any other circumstance where a government-imposed, one-size-fits-all mandate actually accomplishes the stated goal?”

    Actually, I can think of a number of them. There is a one-size-fits-all mandate for speech. There is a one-size-fits-all mandate for religion. There’s one for protection against illegal searches and seizures, the right to a trial by jury, the right to an abortion, the right to travel, and a host of others.

    They’re called fundamental constitutional rights.

    There happens to be such a right of parenthood, as well. And until someone shows that it benefits children to have judges making arbitrary decisions (based on a meaningless standard) that increase the conflict between their parents, waste incredible sums of that family’s money, waste incredible amounts of time, and shatter the life of at least one of the parents, it seems to me that we ought to simply do as we do with the other fundamental constitutional rights and just treat everyone equally.

    By the way, I was also at the event that Abby discussed, and found the speaker to be remarkably cogent, charming, witty, debonnaire, compassionate, delightful, generous, amusing, enchanting, pleasant, convincing, logical, rational, coherent, articulate and lucid.

    Oh, yeah … and correct.

  52. Mike Newdow says:

    Oops – it looks like the names go with the prose above, not the prose below. If so, I apologize to Abby. It apparently was “B” who made the comment I referenced.

  53. Christina says:

    Did anyone go and read the actual bill? It doesn’t mention 50/50 custody. It says

    A proposed joint physical care parenting plan shall address how the parents will make decisions affecting the child, how the parents will provide a home for the child, how the child’s time will be divided between the parents and how each parent will facilitate the child’s time with the other parent…”

    The conversation on this link has been interesting and surprisingly civil, but it’s based on a false premise.

  54. kayare says:

    I’m a lawyer in the District of Columbia, and we do have presumptive joint custody. The trick about our law is that “joint custody” isn’t specifically defined, but it is presumed to include both physical and legal custody. Custody here is based primarily on the best interest of the child(ren), not on what the parents think is most fair (for whatever reason). One of the factors in determining the best interest of the child(ren) is a history of domestic violence by either or both of the parents.

    How joint custody is defined here depends on the judge and the parents. I’ve worked cases where mom’s had primary physical custody and those where dad had it. Frankly, judges rarely allow a 50/50 time share unless the parents live essentially next door because it’s too disruptive to the children. Parents here usually split legal custody, but the orders usually have some way to allow a final decision, whether it’s giving the parent with primary physical custody the final say after a process of deliberation, or having a special master as the “decision maker of last resort” for parents who have a long history of being unable to communicate well regarding the child(ren)’s well-being.

    It’s rarely in the child(ren)’s best interest to have a literal 50/50 split for physical custody. From my experience, (and remember, this is deep into litigating a fairly nasty breakup) the only people who push for it are either trying to hurt the other parent or attempting to continue an ongoing abusive relationship with the court’s permission. This isn’t always the case (obviously there are amicable separations and parents who can find a way to split things in the children’s best interests), but judges tend to be very wary.

  55. Jacqueline says:

    I don’t know the answer to this question. All I know is what I’ve done in my life. I do think custody is something that should be handled on a case by case basis. But I also think fathers are often shortchanged and treated as though they don’t matter much just because they may parent differently from a mother.

    Thank you God, my former spouse and I had the maturity and foresight to divide custody according to our strengths. I’m better at all the school stuff and homework and making sure they get to all the activities on time and prepared and the purchasing of clothes and other needs and everything that’s detail oriented. He’s better at taking them canoeing or fishing or on a big driving vacation across Canada, etc. I have them during the week and he has them on weekends and for vacations. That way, there is no complicated switching from house to house during the school week and everyone can look forward to the fun vacation times and the outdoor activities with him. We cooperate as parents.

    Unfortunately, I realize this isn’t always the case. How I feel about him as a human being or as a former husband is SEPARATE from how I feel about him as a father. No matter if I’ve been arguing with him on the phone out of earshot from the children and I’m filled with rage, by golly when he shows up at the door to pick them up I greet him cordially and with respect. He is their father forever and ever and ever and I have to put my own crap aside and encourage that father/children relationship.

    The children MUST come first. They did not ask for this divorce yet they are the ones who will suffer the most from it if their father and I are at odds over parenting. It takes a LOT of holding my tongue and taking a deep breath and thinking of things from the children’s perspective and simply letting GO. What’s the big deal if someone comes back on Sunday night and obviously has not brushed their teeth all weekend? What’s the big deal if they eat canned soup and have dirt caked under their fingernails? As long as they had a LOVING time with their father then I don’t mind being the one to suggest a bath or a tooth brushing or a piece of fresh fruit. Isn’t that what we want? A loving father?

    It’s worth just shutting my big fat mouth over inconsequential details because my children are healthy and happy and not conflicted over the situation four years after the divorce.

    I love what the above commenter (Marc Danziger) said. You are a family forever. Word!

  56. Monika says:

    Haven’t gotten divorced myself, but my husband’s brother and his wife divorced when their son was about 7, at which point they started joint physical custody. Both of them were reasonable people and good parents, and even though infidelity was the reason for the divorced (she left him for another man), they didn’t argue when it came to their son…

    And yet…

    William is now 19, and has life has been fundamentally damaged by the divorce and the joint custody arrangements, in such deep ways that he will bear the scars forever. Because custody was 50/50, he never had the feeling that he had any place to really call home. His mother lived with her lover in *his* house for many years, until they split, and then she lived with another lover for years, until *they* split, and then moved out into an apartment on her own with her son. William’s father found a new partner within a year. At first, it seemed great: she was a psychologist working in family therapy, dealing with cases just like this. But then they had their own children together — 3 of them — and William was displaced. He wasn’t there half the time, and so wasn’t really part of the family, and he and his stepmother didn’t get along. He didn’t get along with his mother’s partners either, and never had a real home with them. When he was 16, and his father and his other family were away camping, William had a party at their house. Neighbours called the police to complain about the noise, and there was a bit of a mess, but nothing was destroyed. Still, his stepmother kicked him out of the house, pushed his father to send him away to boarding school, and he hasn’t really been back since. No room in any case — one of their children moved into the room he used. His mother is back with her ex-, and so William lives alone. And being still very young, he screws up. I feel so sorry for the kid, and wish we could take him in (we live half way across the world). He’s 19, and has no place to call home.

    I’ve long wondered if they hadn’t gone for 50/50 physical custody, if he had stayed with his dad, whether the situation would have evolved this way. His parents tried to be fair, and ensure he had equal time with both parents, but in doing so, ensured that he had NO real home.

  57. Leslie says:

    Children are PEOPLE, not property to be split 50-50. Small children, especially, need a consistent caregiver. The only PRESUMPTION should be that matters should be worked out in the best interests of the child.

  58. Cheryl says:

    I think many of these “mad dads” are sincere about wanting more time with their children BUT many are just really kvetching about child support. They cannot stand the idea that they are paying money to the woman they divorced . . . especially as she doesn’t have to account how she spends it. In general, even if a father has 50% physical custody, he doesn’t do the weight bearing in the parental relationship and never did. For whatever reason (including women’s own insecurities), the mom tends to be the one to do all of the grunt work of parenting. That continues even after divorce.

  59. Artemisia says:

    “That said, if my man wanted to leave me, I would say, fine, go, but you’re leaving your child, too”

    You would punish your child, depriving her of contact with her father (the father, by the way, that ***you*** chose for her) because he stopped loving you? Wow. You can remarry, but you know what? That’s the only dad she ever gets.

    I strongly believe that the best interests of the children should be, really, the ONLY consideration, but I think losing frequent and regular contact with either parent (father or mother) is almost never anything but devastating to children. Certainly it’s not in their best interest.

    Certainly you have my sympathy if you reproduced with someone who then started drinking/stopped loving you/turned out to be an imperfect parent/husband/wife/breadwinner, but again, that’s the only other parent your child GETS, and anything you or the courts do to estrange your child from that that person is deeply wrong and hurtful.

    So I disagree with you, Katie. I’m 100% for the legal presumption of joint custody, hopefully with guidelines for the judge to consider the age and health of the children, the willingness of each parent to work with the other, etc. Of course, ANY presumption of ANYTHING can go wrong for children of divorcing parents, but I’d rather start here than with the existing presumption all divorced mothers should be primary parents and all divorced dads are expendable.

    One thing I like about the presumption is that it expresses an important expectation, that divorcing parents, no matter how angry at the other, are responsible for working together amicably on the parenting part. The courts can’t really enforce it, but they can legitimize it.

  60. Jenn @ Juggling Life says:

    I don’t know how it is at all fair NOT to presume joint custody unless a valid case can be made for one parent to have a greater percentage. There is absolutely no doubt in my mind that the family court system is extremely biased against men.

    There are men that are deadbeat dads and there are women that game and abuse the system–the rules should be made for the “average” situation and adjusted from there. How any feminist can argue for women being given any preference in any situation boggles my mind–are we not the ones that have fought for equality all these years? Don’t men deserve that same equality when it comes to their families?

    I do believe that no-fault divorce has been a terrible thing for children. Too many people walk away from their marriages too easily–I’ve had many friends, in their second marriages, tell me they gave up too easily, over problems that were more a part the ups-and-downs of life than specific to that partner or their marriage. They regret what divorce meant for their children.

    As a veteran of an almost 24-year marriage that has seen us raising four children, weathering bouts of unemployment and facing the deaths of loved ones I can tell you that not only have there been down days, there have been down years. Only an absolute commitment, on the part of both my husband and myself, to fulfill the promise we made when we were married, and reaffirmed with the the birth of each child, to keep our family together forever has seen us through.

  61. Stopthefraud says:

    I agree that fathers are being trampled all over the courts. On a case like mine, after many years of loving and being there for my daughter, it turned out that she was never biologically mine.

    I found out that she was not mine and did a home DNA test and it came back negative (No way in hell that I am the father) now the courts say that since I signed the birth certificate, that I am the “legal” dad.

    So the mother committed paternity fraud and the courts are the strong arm supporting said fraud!

    I think the court should find the REAL dad and make HIM pay since I ho longer have a relationship with my daughter who now blames ME for “nerver knowing her real dad”

    If there is a law that need to be changed is that before a birth certificate is signed, a DNA test must be done!

  62. Bronwen Elliott says:

    In Australia our laws were changed to make shared 50/50 custody the default setting parents (married or de facto) separated. Now there is a proposal for the law to be changed because of considerable evidence of harm to children.
    http://www.smh.com.au/national/family-law-changes-anger-mens-groups-20110323-1c6v0.html
    Whatever the law says, 50/50 will be the best option for some families, especially where separating parents can keep their conflict manageable, and protect the kids from getting caught up in it. But no law can make people be reasonable and make good judgements about their kids – which is why the Australian law needs to be changed. As well as the issues about expecting parents to cooperate after separation when there had been significant domestic violence , there have been situations where parents can’t agree about which school kids would attend, where the result of 50/50 is that both parents try to enrol the child in a different school.
    Personally I think kids have to come first – it is not about the rights of parents or what they deserve, it is about how the law supports, and where necessary requires parents to find solutions to the issues arising from separation that will work for children.

  63. Erika says:

    I have a cousin that has a weekly arrangement. They switch on Sundays. Their two children have two homes. They never have to pack a bag because they live at both houses. Both parents get to be in their lives. Both parents take them to school, go to soccer games, recitals, teacher conferences, etc. They split holidays. They do have an agreement that neither of them will move out of the city until the children graduate high school. Divorce sucks but I think they have it right.

  64. Babs says:

    Not all dads are cut out for 50-50. My ex takes job with late hours but expects our son to be with him. He has other choices. In the past year, he’s gone on four trips with his girlfriend. Two were for two weeks apiece. She’s been on the scene for five years, so it’s not that. He refuses to switch off when responsibilities fall to me because of team practices etc. He is uncooperative, did not let me speak to my son on the phone for years when he was with him and also does not coordinate well between homes. Oh, is he made because I left him? Nope. He left me.

    Some dads are not cut out for 50-50.

  65. Moi says:

    I agree that one-size-fits-all really fits no-one well.

    In my experience, my ex brought up joint physical custody (we divorced in a state where joint legal custody was assumed) only as a gambit to get out of paying child support. We never made a set visitation schedule, but he was extremely unreliable and months would often go by without him seeing them, although we lived less than 25 miles apart. Child support was sporadic, birthdays were usually forgotten, and it was up to me to facilitate any continued relationship with his side of the family. At one point, he moved out of state with a new girlfriend and didn’t see the kids for perhaps two years.

    Since then he’s remarried, has a new family and is much more stable, and has a bit more interest in the kids. I don’t think their relationship with them is a parent-child one per se — I think they consider him like an older cousin or uncle, maybe.

    I think my point, if I have one, is that there are some people (in my experience, it was Dad, although there are probably Moms with the same issues) who are not cut out to parent small children 50% of the time, whether because of their circumstances or their temperament. I’d like to think my ex would have stepped up to the plate if he’d had to, and he seems to be a fine, involved parent with his new family … but back in the day, I don’t think he was capable of it. Our kids have had a consistent home, lots of good positive adult role models, plenty of opportunities provided by extended family, and I think they’ve turned out fine.

  66. Maggie says:

    For me the question is ‘what’s the presumptive custody now?’

    Back when I got divorced, in many states the presumption was that the mother got custody and the father got visitation. If the father wanted more than the two weekends a month plus alternate Christmases that was then the standard, he had to show cause why the mother was an unfit parent — not just that he was a fit one.

    So if we’re moving from presuming that the mother gets sole custody to presuming that both parents share custody … and then discussing the individual case from there … I’m definitely for that. In most of the marriages I know today, the kids are being parented by both people in a much more egalitarian way than when I was raising mine. Let’s not ‘presume’ the fathers out of it.

  67. AmyLynee says:

    There’s some great comments here! I am a divorce lawyer so I suppose I should be able to add something, but I’m not sure I can. Divorces are so individual! I see mothers harmed and fathers harmed, significantly. I guess on the whole, I think the presumption should be joint legal custody but physical worked out case by case. I do not, like, however, that there is such an overwhelming bias in support of the mother getting primary physical custody. To me, it matters WHO ended the marriage and WHY the marriage was ended (in my state, this currently does not matter unless there is abuse). If the man leaves for his 20 year old secretary (yes, it happens), then he should not get 50/50 custody. I think it is very unfair when the person ending the marriage doesn’t take a hit on the custody (unless the marriage was ended for a valid reason). I have seen over and over again that a husband or wife will cheat, lie, damage their spouse, but then get the kids too. This is what bothers me.

  68. Terra says:

    There are too many comments here for me to read them all, but after reading Lindsay Q’s comments about her custody battle, my stomach churned. She reminded me of my own mother’s bitterness and hate toward my father when they divorced when I was 12. Her ex has BOUGHT A CONDO to be near his daughter and yet she bashes him for not knowing her clothing size? My husband, who is the most fabulous father in the world, has no idea what size my daughter wears – men are clueless about that stuff! From experience, I can say that the fighting and bashing between parents (not divorce itself) is horrible and traumatic for a child. Lindsay needs to step back, cool her jets, and realize that maybe her ex just simply wants to have an active, day-to-day, role in his daughter’s life. Maybe he doesn’t want to go a week or two at a time without seeing her? I can’t believe he would voluntarily take on the tremendous task of wanting to care for a two year old 50% of the time just to get out of paying for child support. Ugh, it makes me sick to see parents bashing and hating one another so much – it’s the WORST thing for a child. I know!

  69. Kim Brierley says:

    Excellent idea and a long time coming! My husband is a great Dad, but because he works and his ex refuses to do so, she has primary. How is that fair? He has spent several years and several thousand dollars to get 42% time with his own children. Why is it presumed that Moms are what is best? He is fighting for primary due to the fact that the 10 yr old is below grade level and the 7 yr old has already failed a grade. Now the ex wants him to pay her attorney’s fees because she is unemployed, by choice, I might add. Let’s go 50-50 and let the better parent be proven not presumed!

  70. Sarah says:

    I respectfully disagree. There has to be a starting point and the only way to make it fair is 50/50. Fathers are parents too and courts are NOT blind to knowing who does what when it comes time for custody hearings. Giving mom’s default custody has driven many the father to bankruptcy “fighting” for what legally and morally should have been half his anyways. Every time a father is told he has “visitation” it is absolutely an atrocity. As a mom, would you want to only “visit” your kids? Dads are often the ones forced to work multiple jobs to keep up with the family finances and the unfair burden of excessive support payments (often requiring yet another source of income to finance that will only be used against him for visitation and payment calculation) so yes, they aren’t the sole caregivers in many situations because they were forced out of that role. Make it fair. Let the proof fall to the contestant or decide between the couple what the best thing for the kids is. I am happy to live in a state where this is the norm.

  71. Matt says:

    Equal, or close to equal time with both parents has been proven by numerious research studies, to be the most beneficial for the child. This author uses her female bias and talks about mothers who may choose to stay in a relationship because they dont want to give up time to the father?!? Huh, am I missing something, are those mothers looking out for their own well being or the child?

    This author’s bias is easily seen in the story, many fathers who have joint, also pay the same amount of child support by the way. No matter what happens with the joint custody bills, fathers have finally said enough is enough and are pushing for more time with their children…and that’s a great thing.

  72. cynthia says:

    I do believe their are father that should have rights to their children but i also believe mothers have more rights and as said in another comment their are some fathers that are not fit for 50/50. I just went to court two months ago, because the father of my children wanted to reconsider child support payments to be lowered. The judge left it the same, witch aint much for three children. He just recently started paying child support, because the state started garnishing some of his money from his checks. Thats when he started taking more interest in our children. We already went to mediation made agreements on every other weekend he takes them and one week him and one week me through out the summer. I just received a letter in the mail that he place a motion for 50/50 custody. He also stated that if he wins then ill be the once paying child support because I make more income. The only reason his doing this is because of his back pay. I dont care much for his money. I rather have full custody of my children. Some fathers do have the rights to their children and has for other their just trying to get there way on not having to pay child support. Pretty pitty!!! Good Luck to everyone going through this.

  73. Nila Fordyce says:

    I am a woman and have witnessed different situations involving child custody and have learned from many people and other resources that it is only in the child’s best interest to have to good loving parents involved in the child’s life no matter what the marital status is. I’m talking about good fit parents–as I believe most are,sure their are a few bad seeds in everything. The tragic problem is that the Family Legal System in this country is still very biased toward the fathers–this is proven. And unfortunately, their are alot of very selfish mothers out their that don’t consider what is in the child’s best interest–nor do the courts or the so-called experts that implement some of these henious laws.i.e.,move-away cases. These are probably the most destructive of them all (they should be banished)–they truly destroy futures of our children and the parent left behind. No, fathers deserve the same rights and fair justice as the mothers. Just because a mother is a mother does NOT mean she should have more rights or is the better parent. Personally, I had a closer realationship with my father–he listened and it was an unconditional love. My mother was too buzy with her Junior Leaque and the arts,etc…She was very busy being a social butterfly. And I have talked to many woman that had the same kind of thing. Fathers are a very important part of a childs growth and upbringing–more so now. And the profound emotional impact this places on a child when they lose a beloved parent is heart wrenching. Shared Parenting should be MANDATORY in all states. Especially, California they’re the worse…You don’t take children away from good fit parents are you insane…This is what you call Legal Kidnapping!!! In California, if a mother is having an affair with another man and wants to take the child and live thousands of miles with her lover
    -for no other reason and the fathers work schedule is a little erractic because of his profession–they allow it. This is the most egregious thing I have ever heard of. I quess they forget people have to do what they have to do to work for a living and put food on the table and roof over his families heads. But this happens all the time. And needs to stop!!! And the child after almost two years crys for her Daddy. Truly tragic. No the Family Legal System is unfair and needs an overhaul.
    Anyone that thinks differently needs their heads examined…

  74. Nila Fordyce says:

    I do hear some biased comments toward fathers here–this is very sad indeed. My father was my hero growing up and he still is at 88. And any woman that denies their child that because of divorce or whatever, should not have children. Any woman that was a strong and centered –with strong family values would want what’s best for her children. Now, if there is some form of real abuse proven –that’s totally different. But, a good mother would want the father in their childerns life no matter what the marital status–a selfish mother, that again is another bad story…The most important thing here–is that you have to do what’s best for the children and so…many times this does not happen. Even when it says this legally–still the very biased evaluators and judges do what they want and again, it’s usually crucify the fathers. One of the problems is the Judges have far too much discretionary power–so if they don’t get somekind of mandatory type of law (Shared Parenting) they are going to continue doing what they do. Especially, if you have a very selfish mother. I am a woman and there are alot of them out there-I could name a few right now…

    And by the way, “The Fathers for Families” group does a fabulous job around the country fighting for the rights of fathers and their children. They have a group of very highly educated and very skilled people that work for them–for years… I just wish the could do more for are children and their fathers. They deserve it…

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