Custody Determinations Should Depend Upon the Particular Facts of a Case, Not a Presumption

Yesterday on the State Bar of Michigan's Family Law ListServ, Chris Campbell who works for Legal Services of Northern Michigan, wrote about the proposed legislation HB 5267 which would create a presumption of joint custody as follows:

"My experience is that this reflects the actual practice of the parents before the divorce and separation.  Like it or not, the "traditional family" concept still prevails in most households, at least in the vast majority of the ones I see in my practice.  Mom does the meals, the clothes washing, the bathing of young kids, the shopping, the house cleaning, the kid-watching ("baby sitting"), and all that stuff.  Maybe the dads could do these things, but they typically do not choose to do so.  Perhaps it is because dads are more likely to have higher-paying employment in the area where I practice, so the family makes choices of roles based on economic factors.

Under the custody statute, moms are favored for these reasons.  And that's the right outcome.  The moms are the ones with the experience and skills to do the bulk of the child-raising.

When the facts are otherwise, the same statute makesit not only possible, but highly likely, that dads will get a different outcome.  But it is a question of fact.

That's why I oppose meddling with the statute.  It works.  It tends to respond to what is, not what some people wish might be.  Maybe some dads wish they had a bigger role, but basing custody decisions on wishes and not on actual practice is a very poor idea.   If the statute does not work in a given circuit, then it's time for better judges, not a new statute."

Powerful statement, Chris. I, too, oppose tampering with the "best Interest of the child" statute. Whether parents jointly exercise custody is a question of fact and our present statutory scheme is designed to let that factual inquiry be made.

Parenting issues have long been of special interest to Jeanne Hannah. To contact Jeanne Hannah with your questions or to view her Family Law website, click here.

Comments

[Darrick]

Just because one parent works and the other doesn't does not mean that the working parent does not parent the children outside of work. The cookie-cutter approach of 20% child custody that the state gives out through the FOC removes much of the parenting input of the working parent. You people can keep talking about maintaining the system and telling fathers to be more like mothers but we will not allow you to distort the truth. Children need both parents and the more time they spend with both parents the better they do. There is bias through out the system begining with the lawyers, the FOC and the courts and the supposed Best Interest of the Children criteria is full of gender bias with the FOC not being trained on what's best for children but what's best to keep the system well funded.

[Jeanne M. Hannah]

I do support and acknowledge that children need a strong, positive relationship with both fit parents. I have long advocated for the right of children to have this. However, I do not believe that foregoing a factual analysis is the proper approach. Please see my response to your other comments, which I will re-publish as a post to this Blog so that all can read them. Jeanne Hannah

[Darrick]

You still do not address the fact that the current system does not properly evaluate custody and never has. When I wrote the governor I ws told by one of her employees that the state has two interests- a stable home and someone to pay for the children besides the state. Since most homes if not all are broken during a divorce you can see what is the most important criteria for the state... MONEY! You and your type also state that we don't need a presumption of equal custody because only a small amount of cases are ever decided by the court. Why is it that judges only rule on a small number of cases? Is it because the lawyers, FOC and judges all pressure parents to settle prior to the final judgement? Can you dispute that there is biased pressure against fathers by all involved for them to settle for the status quo of 20% custody? Finally, how do you respond to the fact that the FOC recommends 80% custody to mothers 68% of the time? Does this custody arraingment really demonstrate the pre-divorce amount of time fathers spend parenting?

[April M]

I would oppose tampering with the "best interest of the child" statute too, if that was in fact the way it operated. However, I don't see that as being done. I've witnessed many custody situations in which the "best interest" is overlooked. Decisions made by the FOC based on lies made by the mother that are simply relied on instead of some form of investigation taking place. To say that the mother is the best choice for those reasons stated by Chris Campbell isn't saying anything about the child. A child needs to have a loving, stable home to live and be raised in...not a maid. I find it difficult to digest that the justification about not giving custody to the father is because he may not cook and clean as much as the mother. Especially when in many homes today, both parents provide for the home and child equally.

If the "best interest" is truly the focus of custody decisions, how can it be justified to let a mother move to another state with their child? How do the courts justify placing a child in a negative environment, especially when the proof, while not directed at the child, is in plain sight for the courts to see? How is it that mothers are continually given custody of the children when it's apparent that the father would provide better a better living arrangment and upbringing? Aren't we encouraging stereotypes for our children to see that men and women are to be placed in specific roles in life instead of promoting equality?

I don't necessarily agree with 50/50 split of custody either because I don't think it's stable for the child; being uprooted every month, week, etc doesn't seem to be the best approach to having a balance life. I believe that both parents need to be involved in the lives of their children but, with the way that the courts are operating at this time, they're encouraging parenting by one person, typically the mother, and the other becomes more of an observer in their child's life. I also have difficulty in believing that every mother deserves custody of their child simply because she does housework. I feel that there needs to be some form of change.

I'm a law student, my goal is to be a judge one day, but the more I see cases like I've seen lately, the more I feel defeated before I even begin in the outside world.

[darricksf]

April you have correctly observed that the current system does not attempt to look out for the best interest of the children. The evalution system is broken and needs to be replaced with what science already knows, the best parent is both parents as close to equal as possible. It is wrong to assume that children would do worse if they had to go between two homes equally since research shows that children do worse when they don't spend more equal time with both parents. If a child is in a standard custody arrangement they already are going between two homes/parents and would have less custody exchanges with more stable homes under equally shared parenting if the parents so desire. Also remember parents have the option to agree on their own arrangements under HB 5267 but neither can deny the right of their children to spend equal time with both fit parents.