Joint Custody Presumption v. Shared Parenting Advocacy

A December 11, 2017 Washington Post article, “More than 20 states in 2017 considered laws to promote shared custody of children after divorce”, states:  “Now lawmakers are accelerating this trend toward co-parenting, with legislatures in more than 20 states this year considering bills that would encourage shared parenting or make it a legal presumption — even when parents disagree.”

This article and others like it take these points:

  • Changes in parenting roles, from one primary to two co-parents;
  • Studies showing that children benefit from two involved parents; and,
  • Perceived or real bias of the courts toward mothers and against fathers

to jump to the conclusion that it is important to update the law in favor of equal parenting time to neutralize gender bias in the courts, resolve cases, and increase or preserve co-parenting.

But, this article and others like it overlook how contested custody litigation often involves high conflict parents who, by their very nature, are unlikely candidates for co-parenting.

This article clouds several important issues:

  • Equality versus fairness of the legal process;
  • Best interests of the child versus parental rights;
  • Shared versus equal parenting time; and,
  • “Presumption” versus “promotion”.

Equality versus fairness of the legal process:

Equal parenting time is an attractive solution for those who feel treated unfairly by the legal process.  Because equal parenting should pave the path to equality between the parents – both in their parenting of and time with the child, but also in how the parents are treated by the court.

However, equality is different from fairness.  A presumption of joint custody does not mean that a parent will better understand the court process.  Or, that  parent will feel heard by a court.  Or, that a parent will better understand a judge’s decision and reasoning.  Without these, a parent will feel unfairly treated, regardless of a presumption.

Fairness falls on the courts.  To educate litigants about the court process and what to expect – especially self-represented litigants.  To respect litigants while protecting children – so parents are heard and their children’s best interests served.  To explain the reasons behind a court decision – so parents understand what a judge considered and how a judge reached her decision.  Without these, a parent will undoubtedly feel unfairly treated despite any presumption.

While a seductively simple solution, a presumption does not fix fairness.

Best interests of the child versus parental rights:

The foundation of Maryland’s child custody law is the best interests of the child.  This requires a court to consider all the facts and circumstances of the individual family before determining custody for the specific child.  Under current law, both parents are the “joint natural guardians of their minor child” and “[n]either parent is presumed to have any right to custody that is superior to the right of the other parent.” (Maryland Family Law Article §5-203.)

A best interest approach puts the child’s needs and interests first.  It is child-focused.

A presumption does not account for the specific needs of each family and each child, but elevates the wishes of the parents over the best interests of the child.  Orders based on nothing more than a presumption, without due and exacting consideration of whether joint custody is truly in the best interests of the specific child involved, is likely to lead to more – not less – discord in the family.   A presumption invites a formulaic approach to custody decisions.

A presumption puts the parents’ needs and interests first.  It is parent-focused.

Setting aside the substantive issues, a presumption must be carefully drafted.  Poorly written presumptions invite unintended consequences.  Consider the unfit parent because of addiction, abuse, neglect, or unmanaged mental health issues;  a relocation in which one parent moves far away from the other;  or, a child who has no relationship with or is completely unaware of a parent.  And, consider when during the case the presumption should apply:  on a temporary basis?  on an emergency basis?  or, not until the final hearing?  Likewise, if a judge decides not to apply the presumption but is not required to explain his decision, how will that help parents understand the outcome?

Shared versus equal parenting time:

Shared is not the same as equal.  Shared custody is also referred to as joint custody.

In 2013, the General Assembly convened the Commission on Child Custody Decision Making.  The Commission was charged with studying child custody decision-making and offering recommendations to improve and bring statewide uniformity to custody determinations.  The Commission issued its Final Report on December 1, 2014.  The Final Report concludes “there should be no presumed schedule of any kind” and “as a general rule, a minimum of 30 to 33 percent time with each parent is optimal for a child when both parents are emotionally healthy and focused on the needs of their child, in the context of a parenting plan based on the child’s developmental age and needs.” (p. 35; emphasis added)

This conclusion was reached based upon review of current social science literature about child custody and parenting time schedules.  So, it is a stretch to say that studies support equal parenting.  Rather, children perceive time differently than adults and differently at various stages of development.  Children can perceive that less than 50% time with a parent is the same as equal amounts of time with each parent.  Shared may feel like equal to a child.

In Maryland, shared physical custody is defined, only in the context of child support, as:  “each parent keeps the child or children overnight for more than 35% of the year and…both parents contribute to the expenses of the child or children in addition to the payment of child support.”  So, less than 35% of annual overnights is sole or primary physical custody. So, physical custody is a spectrum.

Nevertheless, words matter.  Parents should not be made to feel like “visitors” with “access” or “visitation”.  Children should not be made to feel like possessions in “custody” of their parents.  Parents should be “parents” with “parenting time”.  Using these terms and updating Maryland’s laws to include them are child-focused changes worth making.

“Presumption” versus “promotion”:

What does it really mean when these articles suggest that a presumption “promotes” equal parenting?

To “promote” is defined as “further the progress of something, especially a cause, venture, or aim;  support or actively encourage.”  “Encourage” is defined as to “give support, confidence, or hope;  help or stimulate”.  That which is promoted or encouraged is not mandatory.

However, a presumption is mandatory.  It goes beyond “promotion” or “encouragement”. A “presumption” is a conclusion a court must make when certain threshold facts are established, even if the facts would otherwise be insufficient to reach that particular conclusion.  A “rebuttable presumption” is a presumption that that must be reached in the absence of evidence to the contrary.

A presumption assumes all parents are equal parents, regardless of the unique needs of the child, obligating parents to show why the court should not apply the presumed custody arrangement.  A presumption is parent-focused.

Alternatively, there is discretion.  In Maryland, a judge has discretion to determine the parenting arrangement in a child’s best interests.  In this context, “discretion” refers to the judge’s authority to decide custody after considering all the facts and circumstances and determining what is in the best interests of a specific child in a specific family.  Discretion focuses on the uniqueness of the family.  Discretion does not assume.  Discretion is child-focused.

In conclusion:

Promoting and encouraging healthy, meaningful parent-child relationships with involved co-parents is ideal.  I serve my clients – parents and children alike – with this ideal in mind.

Time is but one component of a healthy, meaningful parent-child relationship and of co-parenting.  A presumption is far too simplistic a solution.

A presumption will not stop parents from feeling unfairly treated.  Fairness comes with education for parents, training for judges, access to legal services, parenting and custody forms (such as parenting plans), and standards for court decisions.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked InFacebookLindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.

 

 

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