Tuesday, March 3, 2009

Thoughts on Presuming Joint Custody Part 1 (Introduction)

For those just coming in, the General Assembly had a bill proposing a change in our custody statute to a presumption of joint custody. My other articles about this are: New Indiana Legislation: New Joint Custody Bill, Following up on New Indiana Legislation: New Joint Custody Bill, and More News On New Indiana Joint Custody Bill (HB 1044).

The actually created some comments on this blog but far fewer than I thought likely. I suppose that is a good antidote to any thoughts about the impact of blogging. Still, I am disappointed. This is an important issue - even if it is framed in the context of evidence law.

Let me state my position quite baldly: the legislation as proposed is not a good idea. from the very first I had a bias against joint custody. From my experience, I have rarely seen joint custody work as advertised. Here are the scenarios where I have seen joint custody fail:

  • Husbands using the threat of a custody fight with all its expenses to get joint custody and the wives agreeing to it because they could not afford the fight and just wanted the divorce over.
  • The parties agreeing to joint custody - or the court ordering it in one case - and then the parties cannot cooperate in their care of the children.
Rare is the case where the parents can continue to cooperate after the divorce but those successful joint custody cases are exactly those where they can cooperate. Where the parents have maturity and the ability to get past their resentments towards their former spouses in favor of their children, joint custody works.

However, I thought that the possibility of joint custody might make parents less inclined to the kind of behavior that makes some custody fights necessary. Then I found the articles that follow. They reinforce my view that whatever resentments are felt by some non-custodial parents, creating a presumption of joint custody will not change those resentments into something more mellow. Nor do I think that this will end child custody litigation but will change the focus of the custody litigation to rebutting the presumption.

I want everyone to read to the testimony presented by the The Women’s Law Project to the Pennsylvania legislature. I know that this will draw the ire of many men but their testimony includes too many studies, too much empirical evidence to be dismissed out of hand without incurring a serious question about motives. Is the desire for a presumption favoring joint custody meant to better lives for children or something to assuage some other feelings that are not so pleasant to consider in print?

I believe I have said this before on this blog, but many reasons exist why men do get custody of their children. Some men do want custody for a range of reasons from the selfish to the altruistic. Some men ought never have custody of their children. Some men should have custody but do not force the issue.

Take a look at that preceding paragraph and substitute women for men. I think that it will sound strange to most if you substitute women for men. I think this problem is what the proposed change is supposed to fix by sidestepping the whole issue. Which leads me to the final reason why I think the law takes the wrong track to a solution. I think the reason anyone finds substituting women for men is cultural and the law just will not fix that problem. Because we think of women as mothers and mothers as nurturing and children need nurturing, mothers will generally be thought of serving the children's best interests.

That the law does not presume mothers as being in the best interests of the children is not always clear to men. I get told constantly that Indiana courts will not give custody to fathers. This is not true but the idea infects clients. I think it may infect lawyers, too. That thought came to me from one of the comments to an earlier post on this issue. Getting custody for a father may take more work - how much work depends on each case and is impossible to discuss in the abstract - but why it takes any work depends on how the parents have divvied up their parental duties. If the father never changed a diaper, never did the midnight feedings, or any of anything similar then I am going to question him closely about why he wants custody. Again, ask yourself why parents should divide parental duties and I think we return to a cultural answer: this is what women do and this is what men do.

Since we are talking about litigation, we need to talk about evidence. The true questions to be asked are these: what evidence does the father have that it is in the child's best interests for him to have custody and what evidence is their that mother serves the child's best interests? The answers to these questions are the starting points in a child custody case.

I will have Part Two tomorrow and Part Three on Thursday.

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