Presumption of Joint Custody: A Family Policy Dilemma

Beverly Webster Ferreiro

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Family Dynamics and Relationships Family and Matrimonial Law Child Welfare and Adoption

Abstract

ew family policy questions arouse greater public concern than the question of how to reduce the negative impact of divorce on children and parents. The continued involvement of both parents in the context of a cooperative parental relationship has been consistently associated with better adjustment in children (Ahrons, 1983; Wallerstein & Kelly, 1980), which leads to the public policy question, What legal structures or family policies best promote cooperation and continued coparenting after divorce? Joint custody is the primary social strategy now used to encourage continued coparenting after divorce. There seems to be little question that joint custody is a good alternative for those parents who freely choose it. For fathers' rights groups and mothers' rights groups, as well as mental health and legal professionals, the current debate centers on whether joint custody should become the norm encouraged by state law through some type of presumption or preference statute. This an issue which arouses passionate feelings on both sides. Preference statutes mandate the court to give joint custody first consideration among custody options (Schulman & Pitt, 1982). Presumption statutes give even more weight to joint custody; it is presumed by law to be in the best interests of the child. Sole custody cannot be ordered unless there is sufficient evidence to rebut the presumption by demonstrating why joint custody is not in the child's best interest (Schulman & Pitt, 1982). This article addresses the issue of whether states should encourage joint custody by passing presumption/preference statutes and has relevance for family policymakers, family lawyers, and mediators as well as family therapists and family life educators. The first section describes the types of joint custody statutes and the current status of joint custody legislation in the United States. In the second section, the arguments for and against

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References

1973New directions in equity research.1982Interparental conflict and the children of discord and divorce.1980Surviving the breakup : how children and parents cope with divorce 1980The aftermath of divorce 1979Post‐Divorce Family Relationships as Mediating Factors in the Consequences of Divorce for Children 1979Divorce: A child's perspective.1987Paternal Participation and Children's Well-being after Marital Dissolution 1981An integrative perspective on children's divorce adjustment.

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1994Equity and Balance in the Exchange of Contributions in Close Relationships 1998Effects of unscreened spouse violence on mediated agreements 1999Marital Dissolution 1998Predictors of Maternal Preference for Joint or Sole Legal Custody 2001Court-Related Predictors of Parental Cooperation and Conflict After Divorce 1998Evolution of Residential Custody Arrangements in Separated Families

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