A Presumption of Joint Custody

(emphasis mine)

A presumption of joint custody is simply inappropriate in a custody case. A presumption is not probative; rather, it merely supplies the fact-finder with a conclusion when there is no proof to the contrary. Thus, a presumption of joint custody automatically establishes a conclusion that joint custody is appropriate without any information that supports that conclusion and shifts the burden of proof to the party seeking to prove that joint custody is inappropriate.

Presumptions and the resulting shift in burdens are generally created for four principal reasons. First, some presumptions are created because of a natural tendency to burden the party desiring change and/or to correct any imbalance created by one party having better access to the proof. Second, special economic or social policies, more often implicit than outspoken, incline courts to favor one premise by assigning it the advantage of a presumption. Third, out of convenience, a presumption may be created to avoid an impasse or standstill and reach a result regardless of whether or not the result is arbitrary or capricious. Fourth, a presumption may be based on a judicial estimate of the probabilities – that proof of one fact makes the inference of the existence of another fact so probable that it saves time and makes more sense to assume the truth of the second fact until the adversary disproves it.

None of these rationales justify a presumption of joint custody. The first rationale does not justify a presumption because parents seeking custody are presumably on equal footing in front of the court and have equal access to proof of what is in the best interest of their child/ren. Likewise, the second, third, and fourth rationales do not work because they would “either be arbitrary, or based on unwarranted assumptions,” as they fail to take into account the realities of the parties’ unique true-life situations and the results of research on joint custody. Thus,

even if the presumption had some indeterminable validity, in unspecifiable circumstances, it could serve no purpose other than to save time. But this saving of time is accomplished at the price of tremendous legal and logical confusion, and accompanied by an intolerable risk of unnecessary error. . . . A court in a child custody case acts as parens patriae. It is not enough to suggest that the task of deciding custody is a difficult one, or that the use of a presumption would result in a correct determination more often than not. A norm is ill-suited for determining the future of a unique being whose adjustment is vital to the welfare of future generations. Surely, it is not asking too much to demand that a court, in making a determination as to the best interest of a child, make the determination upon specific evidence relating to that child alone. . . . [M]agic formulas have no place in decisions designed to salvage human values.
The custody statute as currently written declares it the “public policy of this Commonwealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of childrearing by both parents . . . .” It also provides for an award of shared custody based on finding that parties are able to cooperate. This finding of capability of cooperation is intended to shield children from the contentious relationships that make joint custody arrangements harmful to them.

The Women’s Law Project believes that families would be better served if joint custody were entered into only with the voluntary agreement of the parties. Based on the demonstrated risk of harm caused by court-imposed joint custody in cases in which the parents are in conflict, the Women’s Law Project opposes a statutory presumption of joint custody.

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2 advocates for peace:

Anonymous Dec 27, 2009 2:32:00 PM  

IT IS ABSOLUTELY APPROPRIATE. Further, it is Constitutionally correct for all including the child.
The court procedure itself for the "presumption of shared custody" is constitutionally correct placing the burden of proof were it belongs. The "presumption of shared custody" is a law that is long over due. With 40% of the the nations children born out of wedlock. Of the 60% of children born of a marriage, 54% of those marriages will end in divorce. Leaving approximately 70% of all children without both their biological parents. Huge numbers of children and adults.To say that the large majority of these parents are unfit is largely subjective of political groups looking at the small minority numbers of custody cases. When in reality it is only a small percentage. Thereby exposing every custody case to unfair and unconstitutional court procedures in all custody cases.

Rj Dec 27, 2009 2:57:00 PM  

I'm not sure how many sentences you read from this post before blathering on your nonsense about biological bullshit and marriage...

Presumptions hardly make sense because it is an ASSUMPTION that all households function the same and that all families want the same thing What part of that don't you understand? You need government to regulate your families?

No one said that a large percentage of parents are more than anyone can assume that just because someone is a sperm donor that he put in 50% of the work as far as caretaking. It ain't brain science.

The only thing unconstitutional (and rather stupid) is a presumption. That's like presuming that kids love both of their parents the same. That's like presuming that your kid would want to stay with you. That's like presuming that all kids want to be treated like property and divided like timeshare. That's like presuming that teens want to spend more time with their parents instead of their friends...blah, blah, blah..

Pray the Devil Back to Hell



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