Presumption of Joint Custody: A Family Policy Dilemma

Abstract

ew family policy questions arouse greater public concern than the question of how to reduce the negative impact of divorce on children and parents. The continued involvement of both parents in the context of a cooperative parental relationship has been consistently associated with better adjustment in children (Ahrons, 1983; Wallerstein & Kelly, 1980), which leads to the public policy question, What legal structures or family policies best promote cooperation and continued coparenting after divorce? Joint custody is the primary social strategy now used to encourage continued coparenting after divorce. There seems to be little question that joint custody is a good alternative for those parents who freely choose it. For fathers' rights groups and mothers' rights groups, as well as mental health and legal professionals, the current debate centers on whether joint custody should become the norm encouraged by state law through some type of presumption or preference statute. This an issue which arouses passionate feelings on both sides. Preference statutes mandate the court to give joint custody first consideration among custody options (Schulman & Pitt, 1982). Presumption statutes give even more weight to joint custody; it is presumed by law to be in the best interests of the child. Sole custody cannot be ordered unless there is sufficient evidence to rebut the presumption by demonstrating why joint custody is not in the child's best interest (Schulman & Pitt, 1982). This article addresses the issue of whether states should encourage joint custody by passing presumption/preference statutes and has relevance for family policymakers, family lawyers, and mediators as well as family therapists and family life educators. The first section describes the types of joint custody statutes and the current status of joint custody legislation in the United States. In the second section, the arguments for and against