>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.
