Friday, February 29, 2008

Joint Custody Presumptions - And Now For The Opposing View

While we in Massachusetts are debating, most recently in the Boston Globe, the wisdom of the proposed joint custody presumption here in Massachusetts, it seems the legislature of Minnesota is studying a similar proposal in that state. In Minnesota Divorce and Family Law Blog: Joint Physical Custody Presumption Subjected to Study, Minnesota divorce lawyer Gerald Williams points out many reasons why he believes the proposed custody presumption there would not be a good thing.

I haven't read the Minnesota bill, but certainly his comments are generally relevant to our conversation here in Massachusetts. Although I am in support of the proposed shared custody presumption here in Massachusetts, I do acknowledge, and even agree with, many of the points often raised against such presumptions. Many of the best arguments against such presumptions are contained in Gerald William's post. It would be good to read it if you are interested in this.

Specifically, Williams explains why the proposed shared custody presumption in Minnesota might very well increase the likelihood of conflict, both in and out of court (many proponents of such a presumption often argue that such a presumption would decrease conflict). I think this is a very important point. I have never joined with other supporters of the shared custody presumption in believing that conflict would magically disappear once we have such a presumption in place. I'm not at all sure whether there would be more or less conflict as a result and no one knows for sure.

Perhaps even more troubling, he further points out that the Minnesota proposal, by including the obvious exception to the presumption in cases of domestic abuse (there is also this in the Massachusetts proposal) would actually be likely to lead to an increase in the use of false allegations in domestic abuse proceedings, as more litigants would have an incentive to make such claims to escape the joint custody presumption:
One other concern is the domestic abuse exception that is written into the bill. The domestic abuse laws of Minnesota are good laws, with a very bad downside: false accusations. Domestic abuse proceedings are the classic, quintessential "he said, she said", and many litigants use the laws, in bad faith, as a tactic for undue advantage. This unfortunate practice would become only more common in the instance of a joint physical custody presumption with a domestic abuse exception.

Of course, one obvious answer to that is that we also need reforms to reduce the incidence of such false allegations and fraudulent restraining orders, and fathers' groups, including Fathers and Families here in Massachusetts, have long called for such reforms as well. But still, we have to consider the very real possibility that mudslinging and false allegations would increase under a shared custody presumption, as we decide both whether we want to adopt such a presumption, and if so, how exactly we want to craft such a new law.

I certainly believe neither the current unstated presumptions or assumptions, nor a new, formal presumption in favor of joint custody can lead to a perfect system that will equally suit every type of family conflict. We have to make a choice, and the choice we make will likely cause more conflict in some instances and less conflict in others. But we can really only speculate as to how much more, or less, conflict we would face if such a presumption were adopted.

Of course, there are other concerns and interests, besides the degree of conflict in and out of court, which should guide us, and chief among them, I believe, is the interest in truth. The better, fairer, and more efficient are the mechanisms for getting to the truth in court, the more likely we will be to effect the best interests of children. That is so because, even though judges are quite fallible, they do generally desire to achieve what they believe is the right result. I believe most, if not all, of the apparent bias of judges would disappear once specific facts appeared to rescue them from their hunches and prejudices. The easier it is to get to the truth, the more often the right result will follow, whether the judge decides the case or not. And that is so because litigants - once they believe the truth would be likely to come out in court before either parent could gain an irreversible, unfair custody advantage - would be more likely to settle on that right result, whatever it is, rather than go to battle in court.

The bulk of cases will still be resolved by agreement, and mostly sooner rather than later, no matter whether we keep the current system or move to a formal presumption, and whether we have slightly more or less conflict in those toughest cases. The most important question for me, then, is what kind of system will lead to the fairest, best result for the most children. On balance, and speaking only for Massachusetts, based on my experience here, I think the shared custody presumption proposed here in Massachusetts, unless we can get the better reforms I proposed (see links to my posts below), would be a good move for us. However, there are certainly valid concerns on the other side, many of which you can find in the Minnesota blog.

For my recent posts on the proposed Massachusetts shared custody presumption, see my main post here and the follow up here. And for one of the best articles I know favoring a presumption of joint custody, see Cathy Young's 2004 article for Reason Magazine: Reason Magazine - Quis Custodiet?.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

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