Thursday, February 5, 2009

Minnesota Shared Parenting Report - Part IV

Other Jurisdictions and Potential Positive and Negative Impacts

Legislators rarely do anything without seeing what others have done before them and what people think about it. Testing the waters as it is called. So it is no surprise that the Study Group would have to research what the results of presumptive joint custody in other jurisdictions was.

Jodie Metcalf, J.D., Manager, Child Support Magistrate Program reported to the Study Group concerning joint custody statutes in other jurisdictions. This Study Group was to focus and report on presumptions of joint physical custody which made studying other jurisdictions somewhat difficult as most presumptions are of joint legal custody.

The research is also complicated by the fact that jurisdictions use different terms for the concepts of joint legal and physical custody and they use graduated approaches. For example it is possible for a statute such as Indiana's to declare that there is no presumption either for or against joint physical custody. This one is about useless though because judges just require that fathers prove they are fit while no burden is placed on the mother. Unless specific findings and conclusions are requested then the judges are free to make a general determination without any showing as to why. Only where statutes provide for a rebuttable presumption or where both parents agree to it can joint physical custody data be comparable.

There is only one state that appears to have a presumption of joint physical custody. Idaho statutes contain a presumption that joint custody is in the best interests of children “absent a preponderance of evidence to the contrary” and except in cases involving domestic violence. However, physical custody is to be shared by parents “in such a way to assure the child frequent and continuing contact with both parents but does not necessarily mean the child's time with each parent should be exactly the same in length nor does it necessarily mean the child should be alternating back and forth over certain periods of time between each parent.” So even with that physical custody is not necessarily near 50/50 and may not provide accurate data for an equal Shared Parenting analysis. Approximately nine states have adopted presumptions of joint physical custody that apply only in cases where the parents have agreed to such an arrangement.

So what remains is that this presumption has not been adequately vetted to determine if it is in the children's best interest. What is left then is to study cases where joint custody has been ordered. All other bases for examination are really nothing more than speculation.

Be sure to check back for the next installment,
Minnesota Shared Parenting Report - Part V
Study Group Discussion of the Impact of a Presumption of Joint Physical Custody

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