Should there be a presumption of shared custody in a divorce involving children? The State of Kentucky thinks so.
Kentucky passed a revised law on April 10, affecting temporary child-custody orders. Kentucky’s House and Senate unanimously approved the law, which creates a presumption of joint custody and equal parenting time.
Professor of Women’s Studies Linda Nielsen of Wake Forest University reports seventeen studies showing that children of divorce want shared parenting. Shared parenting after divorce is best for children. Decades of social science research clearly establish, except in rare cases, children do best if both parents share in the day-to-day responsibilities of rearing the children after separation or divorce.
Shared parenting is the only measure that reliably increases child support compliance. Shared parenting is a solution that prominent and respected experts in child development have shown through research that children ardently desire. It makes them happier and shows improvement in their schooling. There is a decrease in delinquency and gang violence. As well as it decreases substance abuse and teen pregnancy. The Wall Street Journal recently highlighted this movement and noted that nearly 20 states are considering measures that would change laws that govern which parent receives legal custody of a child following divorce or separation.
Every state has presumptions embedded into their respective laws. One presumption often presented in the family code, is the presumption to overcome a domestic violence incident or domestic violence conviction. California Family Code §3044 states,
“Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child…”
This simply states that the aggressor has to show by a preponderance of the evidence that he or she has been rehabilitated and is no longer a threat to the other party in the family law case. In determining whether the presumption has been overcome, the court must consider a number of specified factors addressing the child’s best interest and whether the perpetrator has successfully completed any of a variety of programs, complied with any protective order if on probation or parole, and committed any further acts of domestic violence. The preference for frequent and continuing contact with both parents or with the noncustodial parent in Family Code §3020(b) and 3040(a)(1) may not be used to rebut the presumption in whole or in part.
Public policy would dictate that as a society we don’t want perpetrators of domestic violence having custody of their children. Society, along with plethora of studies, indicates shared parenting with equal timeshare is in the best interest of the child(ren). States can enact laws and requirements for a parent to rebut the presumptions and prove why it wouldn’t be in the best interest for the other parent to have an equal timeshare. However, the presumption for shared custody with equal time is a great starting point for a judge and the parties.
Jennifer Gerard’s extensive career has included the unique experience of practicing in criminal, juvenile and family law. Formerly a Deputy District Attorney of Riverside, her experience, particularly in the domestic violence unit, has given her unique insight into family dynamics and domestic violence issues. After several years prosecuting juvenile and domestic violence cases she went to work for a firm that specialized in juvenile delinquency and dependency cases. Through this firm she was certified as a minors counsel and is qualified to represent minors in all courts including family, criminal and probate. For the past ten years Ms. Gerard has operated a legal practice in downtown Riverside which focuses on representing parties in family law, criminal law, juvenile law and legal guardianship cases. Ms. Gerard is often appointed by the court, as well as, her colleagues in high conflict custody cases to represent the children involved. She also represents children or parents in the Juvenile court. When Ms. Gerard is not in court she teaches criminal and juvenile law classes at University of Phoenix and ITT tech as an adjunct professor.
About Jennifer Gerard, Esq.
