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May 14, 2012, 04:25:00 PM
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The following are some of the best relevant statutes from States which provide a presumption.
DELAWARE: Title 13, Chapter 7, Subchapter I, 701. Rights and responsibilities of parents; guardian appointment.
(a) The father and mother are the joint natural custodians of their minor child and are equally charged with the child's support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child's custody or any other matter affecting the child. If either parent should die, or abandon his or her family, or is incapable, for any reason, to act as guardian of such child, then, the custody of such child devolves upon the other parent. Where the parents live apart, the Court may award the custody of their minor child to either of them and neither shall benefit from any presumption of being better suited for such award.
DISTRICT OF COLUMBIA: D.C. Code 16-911. Alimony pendente lite; suit money; enforcement; custody of children. (a)(5) and 16-914. Retention of jurisdiction as to alimony and custody of children. (a)(2)
... Unless the court determines that it is not in the best interest of the child, the court may issue an order that provides for frequent and continuing contact between each parent and the minor child or children and for the sharing of responsibilities of child- rearing and encouraging the love, affection, and contact between the minor child or children and the parents regardless of marital status. There shall be a rebuttable presumption that joint custody is in the best interest of the child or children, except ininstances where a judicial officer has found by a preponderance of the evidence that an intrafamily offense as defined in D.C. Code section 16-1001(5), an instance of child abuse as defined in section 102 of the Prevention of Child Abuse and Neglect Act of 1977, effective September 23, 1977(D.C. Law 2-22;D.C. Code 6- 2101), an instance of child neglect as defined in section 2 of the Child Abuse and Neglect Prevention Children's Trust Fund Act of 1993, effective October 5, 1993 (D.C. Law 10-56; D.C. Code 6- 2131), or where parental kidnapping as defined in D.C. Code section 16-1021 through section 16-1026 has occurred.... To determine the best interest of the child, for the purpose of making a joint or sole custody determination, the court shall consider all relevant factors, including, but not limited to:
DELAWARE: Title 13, Chapter 7, Subchapter I, 701. Rights and responsibilities of parents; guardian appointment.
(a) The father and mother are the joint natural custodians of their minor child and are equally charged with the child's support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child's custody or any other matter affecting the child. If either parent should die, or abandon his or her family, or is incapable, for any reason, to act as guardian of such child, then, the custody of such child devolves upon the other parent. Where the parents live apart, the Court may award the custody of their minor child to either of them and neither shall benefit from any presumption of being better suited for such award.
DISTRICT OF COLUMBIA: D.C. Code 16-911. Alimony pendente lite; suit money; enforcement; custody of children. (a)(5) and 16-914. Retention of jurisdiction as to alimony and custody of children. (a)(2)
... Unless the court determines that it is not in the best interest of the child, the court may issue an order that provides for frequent and continuing contact between each parent and the minor child or children and for the sharing of responsibilities of child- rearing and encouraging the love, affection, and contact between the minor child or children and the parents regardless of marital status. There shall be a rebuttable presumption that joint custody is in the best interest of the child or children, except ininstances where a judicial officer has found by a preponderance of the evidence that an intrafamily offense as defined in D.C. Code section 16-1001(5), an instance of child abuse as defined in section 102 of the Prevention of Child Abuse and Neglect Act of 1977, effective September 23, 1977(D.C. Law 2-22;D.C. Code 6- 2101), an instance of child neglect as defined in section 2 of the Child Abuse and Neglect Prevention Children's Trust Fund Act of 1993, effective October 5, 1993 (D.C. Law 10-56; D.C. Code 6- 2131), or where parental kidnapping as defined in D.C. Code section 16-1021 through section 16-1026 has occurred.... To determine the best interest of the child, for the purpose of making a joint or sole custody determination, the court shall consider all relevant factors, including, but not limited to:
- the willingness of the parents to share custody;
- the sincerity of each parent's request;
- the parent's ability to financially support a custody arrangement;
- the impact on Aid to Families with Dependent Children and medical assistance;
- the benefit to the parents;
D.C. Code 16-911(2)(A) In any custody proceeding under this chapter, the court may order each parent to submit a detailed parenting plan which shall delineate each parent's position with respect to the scheduling and allocation of rights and responsibilities that will best serve the interest of the minor child or children....
(D) The court may also order either or both parents to attend parenting classes.
(3) Joint custody shall not eliminate the responsibility for child support in accordance with the applicable child support guideline as set forth in section 16-916.1.
FLORIDA: Title VI, Chapter 61, 61.13. Custody and support of children; visitation rights; power of court in making orders.
5(2)(b)...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 of childrearing....
2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child....
3.(3) For purposes of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of the child, including but not limited to:
(a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.
(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
(j) The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(4)(c) When a custodial parent refuses to honor a noncustodial parent's visitation rights without proper cause, the court may:
1. After calculating the amount of visitation improperly denied, award the noncustodial parent a sufficient amount of extra visitation to compensate the noncustodial parent, which visitation shall be taken as expeditiously as possible in a manner which does not interfere with the best interests of the child: or
2. Award the custody or primary residence to the noncustodial parent, upon the request of the noncustodial parent, if the award in the best interests of the child.
IDAHO: Title 32, Chapter 7, 32-717B. Joint custody.
(1) "Joint custody" means an order awarding custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of frequent and continuing contact with both parents... If the court declines to enter an order awarding joint custody, the court shall state in its decision the reason for denial of an award of joint custody.
(2) "joint physical custody" means an order awarding each of the parents significant periods of time in which a child resides with or is under the care and supervision of each of the parents or parties.
(4) Except as provided in subsection (5), of the section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interest 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.
Section 1 of S.L. 1982. ch. 311 read: "Policy statement. It is the policy of this state that joint custody is a mechanism to assure children of continuing and frequent care and contact with both parents provided joint custody is in the best interest of said children."
LOUISIANA: Civil Code, Section 3,
Article 131. Court to determine custody. A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:
(1) To both parents jointly. The court shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the custody order, or the parents acting individually or in concert may submit a custody implementation plan to the court prior to issuance of a custody decree. A plan of implementation shall allocate the time periods each parent shall enjoy physical custody of the children and the legal authority, privileges and responsibilities of the parents....
(2) To either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent's sex or race. The burden of proof that joint custody would not be in a child's best interest shall be upon the parent requesting sole custody.
D. For purposes of this Article, "joint custody" shall mean the parents shall, to the extent feasible, share the physical custody of children of the marriage... Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact, with both parents. An award of joint custody obligates the parties to exchange information concerning the health, education, and welfare of the minor child; and, unless allocated, apportioned, or decreed, the parents or parties shall confer with one another in the exercise of decision- making rights, responsibilities, and authority.
E. ... The court shall state in its decision the reasons for modification or termination of the joint custody order if either parent opposes the modification or termination order.
Article 132. Award of custody to parents
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.
SUBPART B. JOINT CUSTODY
335 Joint custody decree and implementation order. A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally... B. (1) In a decree of joint custody the court shall designate a domiciliary parent....
(2) The domiciliary parent is the parent with whom the child shall primarily reside....
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise....
C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.
MONTANA: Title 40, Chapter 4, Part 2. Support, Custody, Visitation, and Related Provisions
40-4-224. Joint custody -- modification -- consultation with professionals
(1) Upon application of either parent or both parents for joint custody, the court shall presume joint custody is in the best interest of a minor child unless the court finds, under the factors set forth in 40-4-212, that joint custody is not in the best interest of the minor child. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody. Objection to joint custody by a parent seeking sole custody is not a sufficient basis for a finding that joint custody is not in the best interest of a child, nor is a finding that the parents are hostile to each other. However, a finding that one parent physically abused the other parent or the child is a sufficient basis for finding that joint custody is not in the best interest of the child.
(2) For the purposes of this section, "joint custody" means an order awarding custody of the minor child to both parents and providing that the physical custody and residency of the child shall be allotted between the parents in such a way as to assure the child frequent and continuing contact with both parents. The allotment of time between the parents must be as equal as possible; however;
(a) each case shall be determined according to its own practicalities, with the best interest of the child as the primary consideration; and
(b) when allotting time between the parents, the court shall consider the effect of the time allotment on the stability and continuity of the child's education.
NEW MEXICO: Chapter 40, 40-4-9.1 Joint custody; standards for determination; parenting plan.
A. There shall be a presumption that joint custody is in the best interest of a child in an initial custody determination....
F. When joint custody is awarded, the court shall approve a parenting plan for the implementation of the prospective custody arrangement prior to the award of joint custody. The parenting plan shall include a division of a child's time and care into periods of responsibility for each parent....
G. Where custody is contested, the court shall refer that issue to mediation if feasible.
I. Whenever a request for joint custody is granted or denied, the court shall state in its decision its basis for granting or denying the request for joint custody. A statement that joint custody is or is not in the best interest of the child is not sufficient to meet the requirements of this subsection.
J. An award of joint custody means that:
(1) each parent shall have significant, well-defined periods of responsibility for the child;
(2) each parent shall have, and be allowed and expected to responsibility for the child's financial, physical, emotional and developmental needs during that parent's periods of responsibility;
(3) the parents shall consult with each other on major decisions involving the child before implementing those decisions; that is, neither parent shall make a decision or take an action which results in a major change in a child's life until the matter has been discussed with the other parent and the parents agree. If the parents, after discussion, cannot agree and if one parent wishes to effect a major change while the other does not wish the major change to occur, then no change shall occur until the issue has been resolved as provided in this subsection.
TEXAS: 153.131 Presumption that Parent to be Appointed Managing Conservator
(a) Unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
(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.
The following are some of the best relevant statutes from states which provide a strong preference for joint custody:
ALASKA: Title 25, Chapter 20
Sec. 25.20.100 Reasons for denial to be set out.
If a parent or the guardian ad litem requests shared custody of a child and the court denies the request, the reasons for the denial shall be stated on the record.
CALIFORNIA: Family Code Section
3040. Order of preference.
(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in 3911: (1) To both parents jointly pursuant to Chapter 4 (commencing with 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, subject to 3011, and shall not prefer a parent as custodian because of that parent's sex.
3080. Presumption of joint custody.
There is a presumption, affecting the burden of proof, that joint custody is in the best interest of a minor child, subject to 3011, 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.
3082. Statement of reasons for grant or denial.
When a request for joint custody is granted or denied, the court, upon the request of any party, shall state in its decision the reasons for granting or denying the request. A statement that joint physical custody is, or is not, in the best interest of the child is not sufficient to satisfy the requirements of this section. IOWA: Title XV, Subtitle 1, Chapter 598
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.
c. The court shall consider the denial by one parent of the child's opportunity for maximum continuing contact with the other parent, without just cause, a significant factor in determining the proper custody arrangement.
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 the parent should be severed.
KANSAS: Chapter 60, Article 16
60-1610. Decree; authorized orders. Neither parent shall be considered to have a vested interest in the custody or residency of any child as against the other parent, regardless of the age of the child, and there shall be no presumption that it is in the best interests of any infant or young child to give custody or residency to the mother.
(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.
(B) Sole custody....
(C) Divided custody.... (two or more children)
(D) Nonparental custody....
MICHIGAN: Chapter 722 Sec. 6a. (1) In custody disputes between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody, and shall on the record the reasons for granting or denying a request.
MINNESOTA: Chapter 518
518.17 Custody and support of children on judgment
The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of he child.
The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child.
MISSISSIPPI: Title 93, Chapter 5
93-5-24. Types of custody awarded by court;joint custody;access to information pertaining to child by noncustodial parent.
(1)Custody may be awarded as follows according to the best interests of the child:
(a)Physical and legal custody to both parents jointly pursuant to subsections 2 through 7.
(b) Physical custody to both parents jointly pursuant to subsections 2 through 7 and legal custody to either parent.
(c) Legal custody to both parents jointly pursuant to subsections 2 through 7 and physical custody to either parent.
(d) Physical and legal custody to either parent.
NEW HAMPSHIRE: Title XLIII, Chapter 458
458:17 Support and Custody of Children
II. Except as provided in subparagraph (c), in the making of any order relative to such custody there shall be a presumption, affecting the burden of proof, that joint legal custody is in the best interest of minor children:
(a) Where the parents have agreed.... If the court declines to enter an order awarding joint legal custody, the court shall state in its decision the reasons for denial of an award of joint legal custody.
(b) Upon the application of either parent....
The following two states have case law which make joint custody a preference:
GEORGIA: Court of Appeals of Georgia, Case No. A93A0698, 7/2/93 IN the INTEREST of A.R.B., a child
In a unanimous opinion, presiding Judge Dorothy T. Beasley stated: Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce.
The A.R.B. case was subsequently heard by the Supreme Court of Georgia, which upheld the Court of Appeals' finding that, according to public policy of Georgia, joint custody was in the best interests of children when both parents are fit.
KENTUCKY: Chalupa v. Chalupa, Kentucky Court of Appeals, No. 90-CA-001145-MR; (May 1, 1992).
Judge Schroder, writing for the majority:
A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the children's upbringing.... The difficult and delicate nature of deciding what is in the best interest of the child leads this Court to interpret the child's best interest as requiring a trial court to consider joint custody first, before the more traumatic sole custody. In finding a preference for joint custody is in the best interest of the child, even in a bitter divorce, the court is encouraging the parents to cooperate with each other and to stay on their best behavior. Joint custody can be modified if a party is acting in bad faith or is uncooperative. The trial court at amy time can review joint custody and if a party is being unreasonable, modify the custody to sole custody in favor of the reasonable parent. Surely, with the stakes so high, there would be more cooperation which leads to the child's best interest, the parents' best interest, fewer court appearances and judicial economy. Starting out with sole custody would deprive one parent of the vital input.