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


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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