Presumption Law in Action: Why States Should Not Be Seduced into Adopting a Joint Custody Presumption

49 Pages Posted: 4 Aug 2017

Date Written: 2016

Abstract

What custody standard is best for children once their parents separate? Many argue that the answer is simple: equal custody – or a presumption for joint custody – is not only fair to parents but also best for children. A presumption for judges has surface appeal: it provides an equitable sounding starting point. Indeed, many legislators throughout the country are considering new laws that would mandate a presumption for shared custody. However, recent social science research, legal scholarship, and judicial decisions suggest that shared parenting may not always be in children’s best interests. In this paper, I argue against the presumption that shared custody is in a child’s best interest. An analysis of recent case law shows that the legal theories supporting presumptions in the law do not justify custodial presumptions in practice. I support this claim by analyzing case law in two of the few jurisdictions with a presumption for joint custody in place. Given the potential for custodial presumptions to harm vulnerable children, we must resist the seductive simplicity of an equal custody presumption and instead focus on what is actually best for children – based on actual, not assumed facts.

Suggested Citation

Karmely, Maritza, Presumption Law in Action: Why States Should Not Be Seduced into Adopting a Joint Custody Presumption (2016). Notre Dame Journal of Law, Ethics and Public Policy, Vol. 30, p. 321, 2016; Suffolk University Law School Research Paper No. 17-13. Available at SSRN: https://ssrn.com/abstract=3012780

Maritza Karmely (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

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