Presumption of Joint Custody

Michigan parents and family lawyers are beginning to rally around to debate and to advocate their positions on pending legislation that would have courts exercise a presumption that joint physical custody is in the best interests of children, according to an article in today's Oakland County Press. HB 5267 is currently scheduled for debate. See the Bill as presented to the House.

Two committees of the State Bar of Michigan have issued position papers on this bill.

See the position paper of the Special Committee on Domestic Violence, chaired by Charlotte Allen here.

See the position paper of the Family Law Section, chaired by Kent Weichmann here.

See also the website of the National Conference of State Legislatures for a map of where the NCSL believes the 50 states are in terms of legislation containing a presumption of joint custody.

 

Most states have adopted laws to encourage the involvement of both parents because legislators have recognized the benefits of joint custody and shared parenting.  In those states, the laws most often take the form of language promoting "frequent and continuing contact" with both parents. But frequent and continuing contact may mean that a parent sees a child for a few hours every week and on alternate weekends and holidays. If a parent disagrees with this schedule, often a "best interest of the child" hearing is required to decide whether the parents will share joint custody. If parents do agree that joint custody is in their children's best interests, court usually will be guided by the parents' decision. In any event, where there is no presumption that there should be joint custody, the court has an affirmative obligation to decide the issue after conducting a best interest hearing.

Some states have adopted laws with a presumption that it is in the best interests of children to have approximately equal time with each parent. The Children's Rights Council provides highlights of laws encouraging shared parenting in the United States. This page on the CRC site has a unique summary of state laws in each jurisdiction and a map indicating the CRC's interpretation of where the states stand on the issue of a presumption in favor of joint custody.

Parents and lawyers need to contact their state legislators to make clear their opinions about whether the family courts of this state should apply a presumption that children should be in the joint custody of both parents.

Find your State Legislator here.

Find your State Senator here.

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]

Please research this and then consider becoming involved in promoting the rights of children to be raised by both parents. The denial of this is going against our constitution in violation of basic civil rights. There are Yahoo Groups for every county in the nation that are forming under the format of NCP-(State Initials)-(County) to battle for these rights so feel free to join on.

[Jeanne M. Hannah]

Darrick: I agree with you that the right of children to have a meaningful and close parent-child relationship with both fit parents - something that is highly recommended by all reputable child development specialists - is sometimes lost in the process as child custody decision are made in the court system. I support children's rights and have advocated for them for over 20 years. Sometimes the system may yield an unjust result, especially where a parent who desires joint custody or full custody is "only entitled to the type of justice that he/she can afford."

Nevertheless, every single case - whether the parents are married or not - revolves around its own unique facts. To take a factual analysis out of the process using the "best interest of the child" factors and to apply a "cookie-cutter" approach [all children will be in a joint custodial arrangement with both parents where a presumption of joint custody is applied] is a recipe for disaster. Such a presumption treats children like chattel (possessions) to be divided equally.

Unfortunately, there are too few parents who are mature enough and educated about the developmental, social, and psychological needs of their children. Divorce brings out the worst in some people. A spouse who feels wronged by the other spouse may be motivated to punish him/her by "taking the children away." It is this dysfunction that contributes heavily to the havoc wreaked upon children where they are denied fair access to both parents.

I prefer to take the term "custody" out of the mix and to use the term "shared care arrangement," which could mean anything from the (unfortunately) more usual arrangement where the children are predominantly with one parent during the school year and have alternating weekends and some time during the week with the other parent to a more enlightened and flexible schedule where the children free-flow between the two homes. A primary reason why I prefer the terminology "shared care arrangement" is that where a parent is motivated to fight for full or joint custody because of pressure from friends, family, or simply a desire not to "lose face," this motivation can hinder reaching a parent-child custodial arrangement that is best for the child.

Yet, I once knew a couple who lived only 2 blocks apart. The father was very, very angry about the divorce. (He believed that marriage was a commitment for life and that his wife had broken her covenant with him). These people shared joint physical custody of two boys - week on/week off. Because of his anger, the children were not allowed "during his time" to walk to their mother's house for a short visit, to say hello to her in church (or even to look in her direction). This can hardly be considered to be healthy for the children.

Advocating for the best arrangement for children is very, very important. But I could never agree to a "cookie-cutter" approach as you are advocating.