State by State Legislation on Joint Custody

[MYSONSDAD]

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]

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.]

..........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!

[Peanutsdad]

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]

...

[Lawmoe]

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]

>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]

>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]

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]

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.