Fathers’ rights topic: Presumption of shared child custody

For decades, family courts in Missouri and around the country started child custody proceedings with the assumption that mothers were the best caretakers for their children. The fathers’ rights movement was created largely to combat this bias. Men who want to remain active in the lives of their children after divorce are not asking for special treatment, just equal treatment.

To combat mother bias (or any bias for that matter), a number of states are passing or considering legislation that would change the way courts approach child custody decisions. Rather than presuming that custody should automatically go to mothers or that one parent (of either gender) should have sole custody, an increasing number of courts are presuming from the beginning that shared custody is in the best interests of children.

A growing body of research shows that whenever possible, it is important for children to have both parents in their lives. Therefore, it makes sense that this goal should be the starting point for child custody negotiations. But should courts be legally required to award equal custody or joint custody whenever possible?

In a recent Washington Post opinion piece, a law professor explains why he is against a legal mandate for the presumption of equal custody. Professor J. Herbie DiFonzo notes that equal custody is not necessarily the same as joint custody, because parents who share child custody often do not have a perfect 50-50 split, nor should they. Forcing courts to presume equal custody may be more in the best interests of the parents than the children.

DiFonzo seems to be all for using shared custody as a guiding principle when beginning most custody negotiations. But he cautions that a legally enforceable mandate for the presumption of shared custody may be dangerous because it is too rigid and does not necessarily reflect the best interests of children. Instead, he says, custody agreements should primarily be a collaborative effort between both parents.

Whenever a legal mandate is in place, there is always a risk that it could lead to unintended and undesirable outcomes. At the same time, maintaining the status quo (mother bias in this case) can also lead to undesirable outcomes. Courts, judges and attorneys must continue to walk a fine line to ensure that both parents receive equal and fair treatment in child custody negotiations.

Source: The Washington Post, “No, children should not spend equal time with their divorced parents,” J. Herbie DiFonzo, Nov. 14, 2014

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