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Author Topic: State by State Legislation on Joint Custody  (Read 8442 times)

MYSONSDAD

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State by State Legislation on Joint Custody
« on: Oct 27, 2004, 08:51:27 PM »
Joint custody legislation in the U.S.
Today, a presumption or preference for joint custody exists in at least 30 states plus the District of Columbia.  Joint custody preferences and presumptions typically take one of three forms: a) a presumption that joint custody is in the best interests of the child; b) a stated preference by the legislature, without a strict presumption; c) a presumption that joint custody is in the child's best interest where both parents agree.  In some cases the preference or presumption is for joint legal custody, while in others, it is for true shared parenting.  Recently passed legislation has tended to favor stronger presumptions that protect the child's right to both parents.  (See in particular Wisconsin, Oklahoma, and Maine, which passed a much stronger statute in 2001.)  
This information is being gathered to assist children's advocates advising legislators in becoming more knowledgable about the provisions and language used in joint custody legislation. Legislation has been introduced in many states to provide a preference or presumption for shared parenting/joint physical or for joint legal custody, or to strengthen existing law. The bills listed below were introduced in recent sessions of their respective legislatures.  This list is incomplete, and will be added to as we obtain information about activities in other states. If you know of legislation in your state, please let us know by email and we'll add it: mdcrc@yahoo.com
 
Presumptions and Legislation for Joint Custody and Shared Parenting
Source: American Bar Association and state legislatures
 

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ALABAMA Statute

PASSED, effective 1997

"It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. "



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ARIZONA Bill Text

S.B. 1290 - 1998

Amends present law by emphasizing parental responsibility toward children and eliminating concepts of possessory rights that may promote conflict between parents.

9. Specifies that the court shall presume that a child is entitled to substantial contact and residential time with each parent and that each parent shall have substantial decision making authority.



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ARKANSAS - Statute

PASSED, 1999- presumption in favor of joint custody

§ 9-13-101. Award of custody.

 (a)  In an action for divorce, the award of custody of the children of the marriage shall be made without regard to the sex of
 the parent, but solely in accordance with the welfare and best interests of the children.

 (b)(1)  When in the best interests of a child, custody shall be awarded in such a way so as to assure the frequent and
 continuing contact of the child with both parents.

    (2)  To this effect, in making an order for custody to either parent, the court may consider, among other facts, which
    parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent.



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CALIFORNIA

PASSED - presumption in favor of joint custody if both parents agree.



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COLORADO -  Statutes

PASSED - preference for joint custody

SECTION 10. 14­10­124, Colorado Revised Statutes:

14-10-124. Best interests of child. (1) Legislative declaration. The general assembly finds and declares that it is in the best interest of
all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents
have separated or dissolved their marriage. In order to effectuate this goal, the general assembly urges parents to share the rights and
responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.



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CONNECTICUT

PASSED - presumption in favor of joint custody if both parents agree.



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DELAWARE - Statutes

PASSED - preference for joint custody

 § 728. Residence; visitation; sanctions.

(a)  The Court shall determine, whether the parents have joint legal custody of the child or one of them has sole legal custody of the child, with which parent the child shall primarily reside and a schedule of visitation with the other parent, consistent with the child's best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents unless the Court finds, after a hearing, that contact of the child with 1 parent would endanger the child's physical health or significantly impair his or her emotional development.



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DISTRICT OF COLUMBIA

PASSED - presumption in favor of joint custody.



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FLORIDA Statute

PASSED - presumption in favor of joint custody.

61.13 Custody and support of children; visitation rights; power of court in making orders.

(b)1. The court shall determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act. It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child.

Shared Parenting After Divorce - from the Florida Bar Association



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GEORGIA - Bill Text

SB 187 - Child Custody

First Reader Summary:  A bill to amend Article 1 of Chapter 9 of Title 19 of the Official Code of Georgia Annotated, relating to general provisions relative to child custody proceedings, so as to provide a presumption of joint legal and physical custody; to provide for exceptions; to provide for a rebuttal of such presumption; to provide for the quantum of evidence required to rebut.



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IDAHO Statute

PASSED - presumption in favor of joint custody.

32-717B.

(4) Except as provided in subsection (5), of this section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interests of a minor child or children.

(5) There shall be a presumption that joint custody is not in the best interests of a minor child if one (1) of the parents is found by the court to be a habitual perpetrator of domestic violence as defined in section 39-6303, Idaho Code.



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INDIANA  1999 Bill Text

HOUSE BILL No. 1026

 Synopsis: Joint custody. Requires a court to consider whether joint legal or physical custody, or both, would be in the best
interests of the child whenever the court determines child custody in dissolution of marriage cases. Requires the court to
consider certain relevant factors when making the joint custody determination. Requires the court to order joint legal or physical
custody, or both, whenever the court finds that the award would be in the best interests of the child. (Under current law, it is
optional whether a court considers an award of joint custody.)



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IOWAStatute

PASSED - presumption in favor of joint custody.

598.41 Custody of children.

1. a. The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

2. b. If the court does not grant joint custody under this subsection, the court shall cite clear and convincing evidence, pursuant to the factors in subsection 3, that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and a parent should be severed.



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KANSAS - Presumptive Shared Parenting

PASSED - presumption in favor of joint custody.

Current Kansas Statute 60-1610

Chapter 60.--PROCEDURE, CIVIL

Article 16.--DIVORCE AND MAINTENANCE

(4) Types of custodial arrangements. Subject to the provisions of this article, the court may make any order relating to custodial arrangements which is in the best interests of the child. The order shall include, but not be limited to, one of the following, in the order of preference:

(A) Joint custody. The court may place the custody of a child with both parties on a shared or joint-custody basis. In that event, the parties shall have equal rights to make decisions in the best interests of the child under their custody. When a child is placed in the joint custody of the child's parents, the court may further determine that the residency of the child shall be divided either in an equal manner with regard to time of residency or on the basis of a primary residency arrangement for the child. The court, in its discretion, may require the parents to submit a plan for implementation of a joint custody order upon finding that both parents are suitable parents or the parents, acting individually or in concert, may submit a custody implementation plan to the court prior to issuance of a custody decree. If the court does not order joint custody, it shall include in the record the specific findings of fact upon which the order for custody other than joint custody is based.

NEW:

Kansas Legislative Services See bills #629, 2816, 2862.

NOTE: Kansas already has a preference for joint custody (see below); these bills are intended to strengthen the protection of a child's right to both parents.

State of Kansas Bill # 629

"The legislature finds it is in the best interest of a minor child to maintain, to the greatest extent possible, the ongoing involvement of both parents in the life of the minor child. The legislature further finds that parents should maintain continued communications to make as many joint decisions in performing such parenting functions as are necessary for the care and healthy development of the minor child"



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KENTUCKY  Bill Text

SB 290

"Creates new sections of KRS Chapter 403 to provide for the equal sharing of parenting and custody in the best interest of the child; Creates new sections of KRS Chapter 403 which states a presumption that shared parental custody is in the best interest of the child and then creates a preferential list for who should receive parental custody; creates a crime called parental interference and makes it a Class D felony. "



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LOUISIANA

PASSED - presumption in favor of joint custody.



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MAINE  Bill Text
PASSED, 2001

On May 31, 2001 the governor of Maine signed LD 1405, which will be effective 09/21/01 requiring a "presumption of joint custody".

SUMMARY.  This bill establishes the policy that parents should be awarded shared parental rights and responsibilities unless the court finds that the
joint responsibility would not be in the child's best interest. The court must provide that the parents equally share the responsibility for
providing their child's residential care, unless the court makes a finding that the equal sharing is not in the child's best interest. The
parents may agree to a sharing of parental rights and responsibilities, including the provision of residential care, which the court must accept
or provide written reasons why the agreement is not in the child's best interest.



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MARYLAND- Bill Text

HB 1217 -Joint Legal Custody and Equal Parenting Time - Preference



Excerpt:
"(A)  IN AN INITIAL CHILD USTODY PROCEEDING, WHETHER PENDENTE LITE OR PERMANENT, INVOLVING THE PARENTS OF A CHILD, THE COURT SHALL  FIRST CONSIDER AN ORDER THAT AWARDS:
(I)                JOINT LEGAL CUSTODY OF THE CHILD TO THE PARENTS; AND


(II)                PHYSICAL CUSTODY OF THE CHILD FOR APPROXIMATELY EQUAL PERIODS OF TIME FOR EACH PARENT."

<>



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MICHIGAN

PASSED - presumption in favor of joint custody if both parents agree.



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MINNESOTA

PASSED - presumption in favor of joint legal custody but not physical custody



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MISSISSIPPI

PASSED - presumption in favor of joint custody if both parents agree.

NEW: Bill Text

Senate Bill 2047

Code Section: A 093-0005-0024

Title: AN ACT TO AMEND SECTION 93-5-24, MISSISSIPPI CODE OF 1972, TO REQUIRE THE COURT, IN AWARDING CUSTODY OF MINOR CHILDREN, TO CONSIDER JOINT PHYSICAL AND LEGAL CUSTODY AS A PRIORITY AND TO DIRECT THE COURT TO DISREGARD THE PARENT'S GENDER IN AWARDING CUSTODY; TO REQUIRE PARENTS TO SUBMIT AN IMPLEMENTATION PLAN FOR ORDERS OF JOINT CUSTODY; AND FOR RELATED PURPOSES.



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MISSOURI

PASSED - presumption in favor of joint custody.

NEW: Bill Text

HB 771 -- Child Custody and Child Support

The bill creates a rebuttable presumption that joint legal and physical custody is in the child's best interests and should be awarded in child custody cases. Joint legal custody means that parents share in making major decisions relating to the welfare of their child.  The bill also requires judges who do not award joint legal and physical custody to consider an award of joint legal and sole physical custody before awarding either party sole custody of the child. Also, if the judge awards sole custody, then the judge is required to award the non-custodial parent appropriate and substantial temporary custody.



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MONTANA

PASSED - presumption in favor of joint custody.



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NEW JERSEY

NEW BILL - Full Bill Text

Excerpts:

1.  The Legislature finds and declares that:
 a.  It is the intent of the Legislature through the adoption of this act to  promote the public policy of this State to endorse the principle that children have frequent and continuing physical time with their parents when the parents live separately or after parental separation ordissolution of marriage. ...
...

2. There shall be a presumption in court determinations of childcustody that joint physical custody and shared physical custody responsibility shall be ordered if it is in the best interests of the child. Upon request of one or both parents for joint physical custody, the court shall so order unless it finds compelling reasons to not award joint physical custody.  If joint physical custody is not ordered, the court's order shall include findings why joint physical custody is not in the best interests of the child.



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NEVADA Bill Text

PASSED - presumption in favor of joint custody if both parents agree.

NRS 125.460 State policy. The legislature declares that it is the policy of this state:

1. To ensure that minor children have frequent associations and a continuing relationship with both parents after the parents have become separated or have dissolved their marriage; and

2. To encourage such parents to share the rights and responsibilities of child rearing.



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NEW HAMPSHIRE

PASSED - presumption in favor of joint custody.



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NEW MEXICO

PASSED - presumption in favor of joint custody.



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NEW YORK
Bill Text - A00182 Establishes the presumption in matrimonial proceedings of awarding shared parenting of   minor children - 1999
The provisions of this
   11  act establish a presumption, affecting the burden of proof, that  shared
   12  parenting is in the best interests of minor children.



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A. 3950--B Rebuttable Presumption of Shared Parenting. - 1998

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets ( ) is old law to be omitted. LBD05074-08-8 A. 3950--B

(a) Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, (may) SHALL award the natural guardianship, charge and custody of such child to (either parent) BOTH PARENTS, IN THE ABSENCE OF AN ALLEGATION THAT SUCH SHARED PARENTING WOULD BE DETRIMENTAL TO SUCH CHILD, for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. (In all cases there shall be no prima facie right to the custody of the child in either parent, but the) THE BURDEN OF PROOF THAT SUCH SHARED PARENTING WOULD BE DETRIMENTAL TO SUCH CHILD SHALL BE UPON THE PARENT REQUESTING SOLE CUSTODY.



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OHIO  Statute

PASSED - presumption in favor of joint custody.

(c) Whenever possible, the court shall require that a shared parenting plan approved under division (D)(1)(a)(i), (ii), or (iii) of this section ensure the opportunity for both parents to have frequent and continuing contact with the child, unless frequent and continuing contact with any parent would not be in the best interest of the child.



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OKLAHOMA

PASSED, 1999 - presumption in favor of joint custody.

Statutes as Section 110.1 of Title 43, unless there is created a duplication in numbering, reads as follows:

It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.  To effectuate this policy, if requested by a parent, the court shall provide substantially equal access to the minor children to both parents at a temporary order hearing, unless the court finds that such shared parenting would be detrimental to such child.  The burden of proof that such shared parenting would be detrimental to such child shall be upon the parent requesting sole custody.



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OREGONStatute

PASSED - presumption in favor of joint custody.

107.105 Provisions of decree. (1) Whenever the court grants a decree of marital annulment, dissolution or separation, it has power further to decree as follows:

(a) For the future care and custody, by one party or jointly, of all minor children of the parties born, adopted or conceived during the marriage, and for minor children born to the parties prior to the marriage, as the court may deem just and proper pursuant to ORS 107.137. The court may hold a hearing to decide the custody issue prior to any other issues. When appropriate, the court shall recognize the value of close contact with both parents and encourage joint parental custody and joint responsibility for the welfare of the children.

(b) For parenting time rights of the parent not having custody of such children, and for visitation rights of grandparents pursuant to a petition filed under ORS 109.121. When a parenting plan has been developed as required by ORS 107.102, the court shall review the parenting plan and, if approved, incorporate the parenting plan into the court's final order. When incorporated into a final order, the parenting plan is determinative of parenting time rights. If the parents have been unable to develop a parenting plan or if either of the parents requests the court to develop a detailed parenting plan, the court shall develop the parenting plan in the best interest of the child, ensuring the noncustodial parent sufficient access to the child to provide for appropriate quality parenting time and assuring the safety of the parties, if implicated. The court may deny parenting time to the noncustodial parent under this subsection only if the court finds that parenting time would endanger the health or safety of the child. The court shall recognize the value of close contact with both parents and encourage, where practicable, joint responsibility for the welfare of such children and extensive contact between the minor children of the divided marriage and the parties.



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PENNSYLVANIABill Text

HB 1723 - 1998

"'Joint custody'. Joint legal and physical custody."

"Award of custody, partial custody or visitation. General rule.An order for joint custody shall be awarded by the court unless the court finds that joint custody is not in the best interest of the child. There shall. be a rebuttable presumption that an award of joint custody is in the best interest of the child. The court state on the record the reason for an award other than an award of joint custody."



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SOUTH CAROLINA - Bill Text

- GB 3981  TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-1550 SO AS TO PROVIDE  THAT THE BEST INTERESTS OF THE CHILD IS THE GUIDING PRINCIPLE IN RESOLVING CHILD CUSTODY AND  VISITATION DISPUTES, TO PROVIDE THAT THE BEST INTERESTS OF THE CHILD ARE SERVED WHEN THE CHILD'S  RELATIONSHIP WITH EACH PARENT IS EQUALLY PROMOTED AND ENCOURAGED, TO PROVIDE THAT THE COURT MUST STRIVE TO EQUALIZE EACH PARENT'S TIME WITH AND OPPORTUNITIES TO BE INVOLVED IN THE CHILD'S LIFE, AND TO PROVIDE THAT JOINT CUSTODY IS NOT REQUIRED BY THIS SECTION NOR MAY VISITATION AWARDED IN ACCORDANCE WITH THIS SECTION BE CONSTRUED AS JOINT CUSTODY.



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TENNESSEE - Statute

PASSED Effective May 15, 1996- presumption in favor of joint custody if both parents agree.

36-6-101. Decree for custody and support of child (a)

(2) Except as provided in the following sentence, neither a preference nor a presumption for or against joint legal custody, joint physical custody or sole custody is established, but the court shall have the widest discretion to order a custody arrangement that is in the best interest of the child. Unless the court finds by clear and convincing evidence to the contrary, there is a presumption that joint custody is in the best interest of a minor child where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child. For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted. The burden of proof necessary to modify an order of joint custody at a subsequent proceeding shall be by a preponderance of the evidence

.



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TEXAS - Statute

PASSED, effective 1995

CHAPTER 153. CONSERVATORSHIP, POSSESSION, AND ACCESS SUBCHAPTER A. GENERAL PROVISIONS

Sec. 153.001. Public Policy.

"(a) The public policy of this state is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;"

SUBCHAPTER C. PARENT APPOINTED AS SOLE OR JOINT MANAGING CONSERVATOR

Sec. 153.131. Presumption That Parent to be Appointed Managing Conservator.

"(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child."



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VERMONT

PASSED - presumption in favor of joint custody if both parents agree



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VIRGINIA Bill Text

HB 1239

" B. In determining parenting arrangements , the court shall give primary consideration to the needs of the child. The court shall assure minor children of frequent and continuing contact with both parents and shall presume that both parents shall share in the responsibilities of rearing their children."



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WASHINGTON

PASSED - presumption in favor of joint custody if both parents agree.

NEW: Bill Text

HOUSE BILL 2407

(+ NEW SECTION. +) Sec. 3. A new section is added to chapter 26.09 RCW to read as follows:

(1) There shall be a presumption that shared parental responsibility is in the best interests of minor children unless:
(a) The parents have agreed to an award of residential placement or decision-making authority to only one parent; or
(b) The court finds that shared parental responsibility would be detrimental to the child or children.
(2) A parent alleging that shared parental responsibility would be  detrimental to the child or children shall have the burden of establishing the allegation.



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WEST VIRGINIA  1999 Bill Text

PASSED, 1999 - presumption in favor of joint custody.

"The child's best interests are defined as: stability; planning and agreement about custodial arrangements and upbringing; continuing and meaningful contact between the child and each parent; assuring that the child is in a healthful and secure environment; and expeditious decision making process regarding arrangements for the child's care and control."

"If each of the child's legal parents has been exercising a reasonable share of parenting functions for the child, the court shall presume that an allocation of decision-making responsibility to both parents jointly is in the child's best interests."



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WISCONSIN 1999 Bill Text   Sections 767.23-24 (pages 628-631)

PASSED, 1999 - presumption in favor of joint custody.

767.24 (2) (am) "The court shall presume that joint legal custody is in the best interest of the child."

767.24 (4) (a) "The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accomodations for different households".



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More information on joint custody laws can be found at the American Bar Association (reasonably, but not completely, up to date) - State Laws Regarding Joint Custody



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"Children learn what they live"


socrateaser

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I don't usually comment on other boards, however...
« Reply #1 on: Oct 28, 2004, 06:35:53 AM »
I think it worth discussing what a legal presumption is, and how it relates to the joint presumption of custody.

There are two types of legal presumptions, conclusive and rebuttable. A conclusive presumption is a forced ruling in favor of a particular fact, that, once proven, completely prohibits any contrary evidence. One of the most common conclusive presumptions exists in contract law, i.e., if the parties to a contract agree to a fact (called a recital), and then build the contract on that fact, the recital is considered conclusive, and neither party can later challenge that presumed fact as false in court. Example: Joe and Jane agree to a recital that states "Whereas, the parties agree that the subject vehicle is owned jointly, and...", then neither party can later argue that legal title to the vehicle exhibits a different distribution of ownership of the vehicle, for the purposes of interpreting the contract. The contract recital is conclusively presumed as true.

A rebuttable presumption is a ruling in favor of a particular fact that places the burden of proving otherwise on the party against whom the presumption works. It permits the favored party the luxury of offering no evidence and still winning on the issue, unless the adverse party produces sufficient evidence to "rebut" the presumption, such that the favored party must produce more evidence.

What does this mean for the "presumption" of joint custody with regard to minor children in custody disputes? First, joint custody is a rebuttable presumption, meaning that a party who wishes to obtain sole custody, must produce sufficient evidence to demonstrate why sole custody is "in the best interests of the child." Otherwise joint custody will be ordered by the court.

Sounds good doesn't it. You may believe that the presumption of joint custody somehow means "equal" custody. Well, forgetaboutit! I'm here to tell you that it's a trick -- fostered by legislatures and attorneys and social workers, and it's designed to fool the layperson into reading more into the presumption than what actually exists, so that the court system can maintain complete control over the determination of custody, while the legislators and attorneys and social workers can feel good that they, at least, have paid some lip service to the electorate, by passing a law that "appears" to do something that it doesn't actually do.

The presumption of joint custody, has little practical effect over the outcome of a custody dispute. There are two reasons for this: (1) There are two types of custody (a) Legal, and (b) Physical. Thus, a judge can award joint legal custody and sole phyiscal, and completely avoid having to deal with the presumption contained in the statutes. (2) A judge can also state in the custody orders that the parties have joint legal and physical custody, and simultaneously order that one party have parenting time for 364 out of 365 days of the year, and, once again, completely avoid the requirements of the joint custody presumption statute.

My examples above are deliberately extreme, however it's quite routine, for example, in CA, to order joint legal and physical custody, and then award 80-90% of the parenting time to one parent.

So, before you get all excited and jump on this bandwagon, consider well what wagon you've jumped on. At present, NO state has a presumption of "EQUAL" custody, and there isn't a bill in any legislature that I know that's even close to passing such a law.

Nevertheless (and this is my opinion), until such time as a presumption of equal, and not joint, custody becomes the norm in family law, anyone facing a custody dispute will still be subjected to the same old crap that parents have been facing since the "maternal preference" (rebuttable presumption strongly favorng custody to the mother) became the standard of law, around 1914. To be fair, prior to 1914, the preference was "paternal" (strongly favoring the father), so, for all practical purposes, the system of resolving custody disputes has never been fair since the original dispute was first resolved by King Soloman about 3,000 years ago, when, faced with two women who claimed that a baby was theirs, he determined to slice the child in half, at which point the real mother immediately gave up the child, and the King immediately awarded sole custody to the real mother.


Kitty C.

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I agree, Soc, but............
« Reply #2 on: Oct 28, 2004, 08:01:35 AM »
There's one HUGE difference in Iowa, in that joint custody MUST be considered if only one parent asks for it.  If that parent asks for it, that parent will also have to state to what degree joint should be ordered (50/50, 60/40, etc).  Then the judge MUST prove that it is not in 'the best interest of the child' NOT to do so.  The beauty of this is that Iowa is one of the VERY few states that actually has a 'legal definition' of best interest of the child.

Yes, we have many judges who are at this moment trying to circumvent this new law.  Which is why we need to get the word out to inform separating parents just what their and their children's rights are and to stand up to that in court.  We now are headed into a judicial reform movement soley based on this issue, holding all judges who rule with this law accountable for their decisions.  This isn't something that will happen overnight, this is an ingrained, biased issue that will take time and effort to take hold effectively.  Just because the law was passed doesn't mean our work is done.  Now we have to educate and convince the judges that this new law IS what families and children need.
Handle every stressful situation like a dog........if you can't play with it or eat it, pee on it and walk away.......

smtotwo

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Absolutely true!! DH and I are in WIS and...
« Reply #3 on: Oct 28, 2004, 08:22:03 AM »
DH has eow, with 1/2 of x-mas-1/2 of easter- and 1 week of each summer month.

Sound like maximum time with both parents to you?  Yeah, Us either.  Because the ex was asking for supervised, judge ordered 6 month ordered then standard visitation.  Also, you can't revisit for 2 years,without substantial change in curcumstance.

Fact that 10 yr old lies,steals, 8 yr old snapped the neck of a kitten and also lies and was abusive to a second kitten, and ex won't get counseling (DH and I are)  ex has moved 5 times in 5 yrs, 10 yr old has been in 5 schools since kindergarten, THeres not enough evidence to change custody.

DON"T EVER THINK THE LAW IS ONYOUR SIDE< EVER!!!

socrateaser

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I conducted a quick review of Iowa appellate law, and...
« Reply #4 on: Oct 28, 2004, 09:07:07 AM »
I find that the Iowa courts have managed to entirely circumvent the statute. I don't know the exact legisative history of Iowa Code Section 598.41, but, if the objective was to mandate substantially equal parenting time, then the statute, is frankly, in my humble opinion, a terrific example of how not to write a law.

In short, section 598.41 achieves little change in the current state of child custody law. To quote from an extremely recent Iowa appellate case, Robertson v. Cannon, No. 4-466 / 03-1978 (Iowa App. 09/09/2004):
:

"In determining which parent should be granted physical care, our overriding consideration is the child's best interests. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). We consider a number of factors, including the child's needs and characteristics, the parents' abilities to meet those needs, the child's relationship with the parents and any siblings, the nature of each proposed home environment, and the effect of continuing or disrupting the child's current status. See In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974); see also Iowa Code § 598.41. Our goal is to select the environment most likely to cultivate a physically, mentally and socially healthy child. See Murphy, 592 N.W.2d at 683. While the child's physical and financial stability are important considerations, great emphasis is placed on achieving emotional stability for the child. See In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998)."

In the above-cited case, the appellate court awarded substantially all of the parenting time to the FATHER, which is ironic, to say the least. But the basis of the award, nevertheless, was that the court must act in the "child's best interests," and if those interests are found to favor something less than the "maximum" possible contact with both of the parents, because the result will promote greater "emotional stability for the child," then that's tough beans for the parent deprived of contact on those grounds.

Anyway, I appreciate your desire for a different solution, but, from what I can see, Iowa courts are not materially different from any other jurisdiction in the making of child custody awards. The law is vague and ambiguous and open to great interpretation, and when courts are asked to interpret law, they are forced to rely on prior precedent, and the history of custody in the U.S. is that one parent will get the bulk of physical custody in most disputed cases.

If I were you, I'd be looking for the legislative reps who sponsored and amended the bill producing 598.41, and I'd tell them that if they don't fix the law once and for all to create a rebuttable presumption of EQUAL custody, absent clear and convincing evidence of parental unfitness, then you will vote them all out of office, until someone is elected who WILL effect the will of the electorate.


MYSONSDAD

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This was posted only to inform and educate
« Reply #5 on: Oct 28, 2004, 09:26:35 AM »
I was not posting to get anyone to jump on a bandwagon.

Many  parents are not aware of their Rights. Each person who enters into the Family Court Sytem should educate themselves on their State Statues. Get an understanding of how the system works. Most of us are not attorneys.

Every State is different. Wording can mean everything. Included were the Bills and text for the States who already having something in regard to Joint.

I appreciate your explanation. Well explained, Thank you for posting it. AGAIN, it educates everyone.

I prefer to be as educated as possible. Not only to understand HOW the system works, but to also know my attorney is doing his job.

What you don't know CAN AND WILL hurt you.

POSTED TO INFORM AND EDUCATE ONLY.

Posting this at a time when the Class Action Law Suits have been filed for so many NCP's. It is something important to all of us. Real changes need to be made. Understanding the wording is just as important.

Kitty C.

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But Soc..............
« Reply #6 on: Oct 28, 2004, 09:32:17 AM »
I'm talking about the new JPC law that went into effect just this past July.  We know that they have circumvented the statutes before, but this new law added teeth to a very weak statute.  Within the past couple months, it has been discovered that tho the new law puts more of an onus on a judge to PROVE why JPC would not be a good idea (and remember that it has to be considered even if only ONE parent asks for it), they are choosing to find ways to still get around it, even tho they have to prove that it is NOT in the best interest of the child.

Iowa's legal definition of BOC specifically states that only abuse can be considered as against it.  Therefore, a judge would have to have proof of abuse in order to rule against a parent asking for JPC.  Our battle right now is educating not just the jurists (and Gov. Vilsack has specifically called for judicial education on this issue) and attorneys, but the parents themselves to stand up for what they want and their children need.

There is a group (Iowa Children Need Both Parents) that is closely monitoring how this new law is going over with the courts and are following how the judges are ruling on it.  We still have our work cut out for us.  Having the law isn't enough, education is needed on all fronts to make it truly happen.
Handle every stressful situation like a dog........if you can't play with it or eat it, pee on it and walk away.......

futurestep-mom_AZ

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RE: State by State Legislation on Joint Custody
« Reply #7 on: Oct 28, 2004, 10:45:59 AM »
Just wondering. State is AZ, My fiance just got Joint legal with him being primary, Mom was Sole. the Court stated that if she tested neg. for drugs for 6 months she could file for custody and he would consider returning things to the way they were. When he ordered joint, my finace had asked for sole b/c of the drugs he said AZ had no opinion one way or another towards sole V joint. Can my fiance use this in 6 months, if necessary that it can not go back to mom have sole unless ahe proves that would be best for the child?

I understand that even if he keeps the joint label does not mean he gets equal time but it seems ridiculous that he had no say or legal right in decision making and such for 2 1/2 years but had 50/50 physical.

socrateaser

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You did good!...
« Reply #8 on: Oct 28, 2004, 11:49:19 AM »
I was just trying to explain the law behind the words.

socrateaser

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RE: But Kitty...
« Reply #9 on: Oct 28, 2004, 12:05:49 PM »
I think that you are misinterpreting the power of the statute, but we shall see when the first appellate case relying on the new statutory language is issued.

The definition of "best interests" in Iowa has an escape route via the text "direct emotional harm..." to the child. All a judge needs is a social worker/mediator/shrink to testify that, in his/her expert opinion, constantly shifting residential environments creates emotional uncertainty and harm to the child, and the judge can grant a traditional custody order.

There is no onus on a judge proving anything. The judge merely needs to find "direct emotional harm" and state that it appeared in the facts presented to the court. Moreover, until and unless an appellate court rules otherwise, a judge could take judicial notice of the fact that shifting residences on a regular basis is emotionally harmful to the child, and that would provide the necessary proof.

Judicial notice is the act of a court admitting a fact into evidence that is easily verifiable and not subject to dispute. And, there are loads of judges who will immediately conclude that this is the case, whether it is or not.

So, time will tell, but I suggest that education will not make a difference to the judges. An Iowa appellate court will need to rule expressly on how the new statute affects the trial courts' discretion and authority.

If you have any attorneys who have written on the subject, or related trial court findings and conclusions, I'd like to read them.

MYSONSDAD

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Thank you...
« Reply #10 on: Oct 28, 2004, 02:47:05 PM »
Just wanting to educate and inform.

I am glad you posted the explanation of all of this. Sometimes things can be misleading. You did good, too!

Most of us walk into family court and do not have a clue or take the time to look thru the statues. Understanding them is another story...

MYSONSDAD

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RE: State by State Legislation on Joint Custody
« Reply #11 on: Oct 28, 2004, 02:52:33 PM »
I don't have a clue about Arizona. Just trying to inform on States that have it in the wording.

From your other posts, I would not worry too much. She is going to find it hard to stay clean. Show the judge the kids are doing better under his care. Keep good documentation.

Post this on your state board, or better, your attorney...

After reading Socs post, everyone should understand better exactly what is going on in each state.

"Children learn what they live"

Kitty C.

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I understand..................
« Reply #12 on: Oct 28, 2004, 03:09:09 PM »
..........I just don't want to!  LOL!

IT's so new, I don't think any attys. have documented anything yet.  The state rep. who introduced the bill will be leaving office the end of this year, too.

We're just holding our breaths to see what happens.........so far it doesn't look good, hence the education of the parents affected is vital!
Handle every stressful situation like a dog........if you can't play with it or eat it, pee on it and walk away.......

Peanutsdad

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RE: I don't usually comment on other boards, however...
« Reply #13 on: Oct 28, 2004, 03:43:34 PM »
Soc,


Thank you,,,,,this was essentially the interpretation I reached after reviewing Texas Family statutes.

When I began my case, so many people were trying to tell me to "go for joint".  Yet, after reviewing the joint custody laws and history of custody rulings here, I concluded, that joint isnt worth the cost of the ink it took to write.

With that in mind, and mindful of the current realities involved in family court, I went for custody and won.



If you dont mind, I would like permission to reprint your post on my site.

socrateaser

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Permission Granted (nm)
« Reply #14 on: Oct 28, 2004, 07:57:53 PM »
...

Lawmoe

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I disagree
« Reply #15 on: Oct 29, 2004, 12:56:28 PM »
That is not entirely accurate.

In most of the states that include a presumption for joint custody, each custodial determination (legal and physical) must be supported by Findings of Facts.  

A Court cannot simply award joint legal custody and sole physical custody and state it complied with the presumption for joint custody.  It must address each type of custody separately.

That does not mean there cannot be bias in the application by the courts. However, the statutes as enacted provide a fair amount of protection and also support an appellate challenge if the presumption is not appropriately apply or a determination that rebuts the presumption is unsupported by the availlable evidence in the case.  

socrateaser

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RE: I disagree
« Reply #16 on: Oct 29, 2004, 05:23:25 PM »
>That is not entirely accurate.

Oy vey.

>In most of the states that include a presumption for joint
>custody, each custodial determination (legal and physical)
>must be supported by Findings of Facts.  

Dreamer.

>
>
>A Court cannot simply award joint legal custody and sole
>physical custody and state it complied with the presumption
>for joint custody.  It must address each type of custody
>separately.

Trial courts routinely order what they want and then challenge parties to overturn the orders. Most people simply cannot afford to appeal a judgment or even move for reconsideration, and most attorneys will not challenge a judge's decision, when they must appear before that same judge over and over again in order to earn a living.

>
>That does not mean there cannot be bias in the application by
>the courts. However, the statutes as enacted provide a fair
>amount of protection and also support an appellate challenge
>if the presumption is not appropriately apply or a determination that rebuts the presumption is unsupported by the available evidence in the case.  

Get real.

In many jurisdictions, such as CA, final orders are reviewed by an appellate court for abuse of discretion. In order to overcome the judge's discretion on a fact, you must show that the trial court could not "have reasonably concluded that the order in question advanced the `best interest' of the child." In re LaMusga, 32 Cal.4th 1072, 88 P.3d 81 (Cal. 04/29/2004).

A judge can decide that a rebuttable presumption stands or falls by only a preponderance of the evidence. So, an appeal based on defeating the trial court judge's decision on the presumption is, at best, an razor-thin  risky proposition. If you put your clients' money up to that razor long enough, you may make lots of money appealing, but you're gonna lose lots of cases while doing it.

In other jurisdictions, such as Iowa, final orders for custody are reviewed de novo, and that certainly provides a better opportunity to win on appeal. Nevertheless, for every appellate case reviewed, there are HUNDREDS of cases that are not reviewed, for all sorts of reasons, and a trial court judge can almost always find some fact to support the reasonableness of a decision, one way or the other.

You can talk all day about how a statute provides this or that fairness, but the bottom line is that State trial court judges, can and do, whatever the hell they want most of every court day, and half of them wouldn't know the law if it shit in their laps.

I'll go even further. In less populated states and counties, removing an incumbent judge is roughly equivalent to removing Alan Greenspan as Fed Chairman -- it ain't gonna happen. In the county where I live, only one judge has lost his seat after being elected since the Civil War, so don't tell me what the law says, cause when you get into that courtroom, the judge IS the law, and he/she ain't at all afraid of being removed for a weakly reasoned decision, and unless the law is so expressed that there is no friggin' way around it, that judge is gonna do as he/she sees fit.

Which is WHY, I stand by what I say. Until such time as the presumption of EQUAL custody becomes the norm, absent a showing of parental unfitness, winning the bulk of custody/parenting time is 99.9999999% of the time, just a matter of being lucky enough to represent the party who is the child(ren)'s primary caretaker at the time that the matter is placed before the court.

The judge will listen to all the experts and argument, and then order the status quo.

kitten

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RE: I don't usually comment on other boards, however...
« Reply #17 on: Oct 30, 2004, 07:56:37 AM »
>Sounds good doesn't it. You may believe that the presumption
>of joint custody somehow means "equal" custody. Well,
>forgetaboutit! I'm here to tell you that it's a trick --
>fostered by legislatures and attorneys and social workers, and
>it's designed to fool the layperson into reading more into the
>presumption than what actually exists, so that the court
>system can maintain complete control over the determination of
>custody, while the legislators and attorneys and social
>workers can feel good that they, at least, have paid some lip
>service to the electorate, by passing a law that "appears" to
>do something that it doesn't actually do.
>
>The presumption of joint custody, has little practical effect
>over the outcome of a custody dispute. There are two reasons
>for this: (1) There are two types of custody (a) Legal, and
>(b) Physical. Thus, a judge can award joint legal custody and
>sole phyiscal, and completely avoid having to deal with the
>presumption contained in the statutes. (2) A judge can also
>state in the custody orders that the parties have joint legal
>and physical custody, and simultaneously order that one party
>have parenting time for 364 out of 365 days of the year, and,
>once again, completely avoid the requirements of the joint
>custody presumption statute.
>
>My examples above are deliberately extreme, however it's quite
>routine, for example, in CA, to order joint legal and physical
>custody, and then award 80-90% of the parenting time to one
>parent.
>


The above examples are unfortunately not that extreme.  It IS very routine in CA to call it joint legal and physical, but label one parent the "Primary" and award 80-90% to that parent.  REGARDLESS of other circumstances.  If the primary parent wants to move, lets just say for sh!ts and giggles 3000 miles away, it is the burdon of the NCP to PROVE the move is not in the childrens best interest.  The fact that one of the two most important people in the childrens lives is being removed from them is not an issue.  The only thing you have to do in CA to be the primary parent and obtain this kind of selfish arrangement is have a vagina.  

ILLINOIS-CRC

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Re: State by State Legislation on Joint Custody
« Reply #18 on: Apr 23, 2009, 08:38:06 PM »
Dear Socrateaser -
 
I think you are on track.   I find these supposed "equal parenting" statutes in various states (and/or "shared parenting presumptions") are written vaguely enough to allow for judicial discretion to determine the  "best interest of the child" - including parenting-time shares -  which is, as we all know, an abyss.  When the Iowa statutes were passed, there was some high-fivin' amongst the fathers-rights groups.   But the judiciary found a way around the Iowa statutes, and the Iowa State Supreme Court backed it up. 
 
The statutes in Illinois are a case in point.  Our ILCS 750 IMDMA reads, "Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody.".   
 
What could be more clear than that, one might ask?  Well, one part of the bail-out is "and cooperation" - if two parents are in court, well gee, at least on THAT day they clearly are not "cooperating".  ( Doesn't matter if they were cooperating, at least as parents, just fine for years while married).
 
Personally,  I find that Glenn Sacks raises a point that the EP (or 50-50) advocates have failed to adequately deal with  (See:  "A Common Fathers Rights Position Which is Problematic" , April 15, 2009 by Glenn Sacks).   The issue that Sacks brings up, and that I feel must be addressed if the 50-50 advocates want to achieve success, is child support.   Until that $1.3 billion question (in Illinois annual CS payments)  is dealt with on a professional and intelligent level, there's little chance any legislation will truly result in an EP-presumption. 
 
The other small problem is that there's little research, at least at this point, that would truly back a 50-50 split as "best for children".  (but, there ARE studies that support the notion of no less than 1/3 parenting time for either parent, as a minimum presumption.)
 
This is a very enjoyable thread.  I'd like to thank the various writers!
 
If if you'd like to continue this debate directly with me, please go to our website at
equalparentingillinois 'dot' org
You will find that we have been at this for more than a couple years in Illinois and are very well-grounded on the research and political dynamics in our state.
 
Sincerely,
 
Mike Doherty, CRC of Illinois
 
 
 
 

MixedBag

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Re: State by State Legislation on Joint Custody
« Reply #19 on: Apr 24, 2009, 01:06:08 PM »
Thanks for your thoughts, but take a minute to notice that you pulled up an old post and Soc is no longer at this site.
 
 

Davy

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Re: State by State Legislation on Joint Custody
« Reply #20 on: Apr 24, 2009, 03:16:03 PM »
But MB ... it was an old post and that is still relevant today.  Besides Soc, notice that MYSONSDAD and Peanutsdad also contribruted ,,,, boy oh boy THOSE WERE THE DAYS !!

 

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