Alimony reform: Minnesota’s new cohabitation law

Law_books_01A new Minnesota law effective August 1, 20161 authorizes a court, upon motion, to treat a former spouse’s cohabitation after a divorce as a reason to modify or even terminate the other former spouse’s maintenance (alimony) obligation.

Basics of the new law

The new law authorizes a court to terminate, suspend, reserve or reduce a spousal maintenance obligation if the payor files a motion and proves that the recipient spouse is cohabiting with someone.

Not automatic

The modification is not automatic. A party seeking to invoke the benefit of the law must file a motion in court.

A court may modify maintenance based on cohabitation only after considering the following:

  • whether the obligee would marry the cohabitant but for the maintenance award;
  • the economic benefit the obligee derives from the cohabitation;
  • the length of the cohabitation and the likely future duration of the cohabitation; and
  • the economic impact on the obligee if maintenance is modified and the cohabitation ends.

Cohabitation with relatives not impacted

The new law only applies to cohabitation with a person that a former spouse could marry without violating the prohibition against incestuous marriages. Moving in with a close relative should have no effect on alimony.

Private agreements

Parties to a divorce may prevent courts from modifying maintenance on the basis of post-divorce cohabitation by including a clause to that effect in their stipulated divorce judgment.

Waiting period

A motion to modify on the basis of cohabitation may not be brought earlier than one year after entry of the divorce decree unless both parties otherwise agree in writing, or in cases of extreme hardship.

Criticisms

Burden on courts

Some critics worry that courts will be flooded with modification motions as a result of the new law. This kind of criticism, however, exalts judicial convenience over fairness. Since the only legitimate function of a justice system is to promote fairness in society, arguments to the effect that judges should not have to trouble themselves with fairness are not especially persuasive.

Intrusion on privacy

When deciding a cohabitation modification motion, a court will be required to consider, among other things, “whether the obligee would marry the cohabitant but for the maintenance award” and “the likely future duration of the cohabitation.” How will a court decide these things? It would seem that evidence of the parties’ motives and intentions — as discerned from their private email, letters and conversations, for example — would be relevant and admissible on these issues. If so, then the bounds of discovery would seem to be almost limitless. An alimony recipient who is concerned about privacy is not without recourse, however, She (or her cohabitant) can request an appropriate discovery protective order.

Vagueness

The new law is subject to the same two criticisms to which the “best interests of the child” custody standard is vulnerable: (1) undefined terms; and (2) absence of an unambiguous standard for weighing the factors relative to each other. For example, a court is directed to consider the “length” of the cohabitation, but no guidance is given about what should be considered a long period of cohabitation. Nor are courts given any hints about what they are supposed to do with such a determination. Is a court to view a lengthy period of cohabitation as circumstantial evidence of continuing need (dependence on a roommate to share expenses) or as evidence that the cohabitation is similar to a common law marriage? Ambiguities like these make different legal outcomes under the same set of facts likely.

Discrimination against remarried persons

Minnesota law provides for the termination of maintenance upon a recipient spouse’s remarriage, unless a court has previously ordered, or the parties have agreed, otherwise.2 The termination is automatic. Unlike a cohabiting former spouse, a former spouse who remarries is not given an opportunity to object or to explain to a court why maintenance should merely be reduced or suspended rather than terminated altogether. Why should courts be required to consider the economic impact on the obligee if maintenance is modified and the cohabitation ends, while not giving any consideration at all to the economic impact on the obligee if maintenance is modified (or terminated) and the remarriage ends?

Discrimination against unrelated cohabitants

The new law only triggers a potential loss or reduction of maintenance if a recipient moves in with a person s/he could legally marry. This distinction does not seem to be rationally related to the modern function of maintenance, which is to ensure that a former spouse’s needs (as measured by the standard of living during the marriage) continue to be met after a divorce. Except in the case of parents and children, or people who have been awarded custody of a relative, people do not have any greater legal responsibility to support relatives than friends. A person who shares expenses with a roommate will have the same needs (or lack thereof) whether the roommate is a relative or an unrelated friend.

The new law also appears to impose an unequal burden on cohabitants relative to non-cohabiting paramours, and this unequal burden does not appear to be rationally related to the modern needs-based function of maintenance. Why should the former spouse of a person whose new lover is paying all of her expenses have to wait until her new lover actually moves in with her before he may bring a motion to modify or terminate maintenance? The person has the same diminished need for maintenance in both scenarios.

The future of alimony reform

Over the next few years, courts and legislators may be expected to add clarifying content to the new law. Ultimately, though, fundamental reconsideration of the place of alimony in a modern egalitarian society is what is really needed.

Historical origins

The concept of alimony is of ancient origin, dating back to earliest recorded history.3 For thousands of years, only men were legally obligated to support their spouses upon marriage, and the obligation extended to situations in which a wife became separated from her husband through no fault of her own.4

At a time when married women had few legal rights, were not protected from discrimination in employment, and could not secure credit in their own names, it was imminently fair for the law to impose an obligation on husbands to support the women they married. It made sense to impose support obligations on married men as the quid pro quo for a married woman’s relinquishment of rights to them through coverture.

The fault element was intended to ensure the fairness of the system. A husband would not be permitted to avoid his support obligation by abandoning his wife and/or by giving her grounds for divorce by cheating on her. By the same token, a wife who unjustifiably abandoned or cheated on her husband would not be entitled to continue to receive money from him. As in ordinary contract law, the breaching party – of either sex — would not be permitted to profit from his or her own unjustified breach of the contract.

Current rationale for alimony

The legal system that gave rise to the concept of alimony has been fundamentally altered. The system of coverture has been abolished; women have been given equal legal status under the law; and in most jurisdictions, the concept of fault has been removed from divorce. Supreme Court decisions and civil rights acts in the 1970’s have removed the legal impediments to women’s employment, credit, and independence. In short, the original reasons and justifications for alimony no longer exist.

Currently, the only rationale for alimony that courts and commentators provide is that one or the other spouse may not have an ability to be self-supporting after a divorce.

Edifice without a foundation

There does not appear to be any doctrinal basis rooted in justice or fairness for the concept that one person should be required to support another person financially after the other person unjustifiably breaches the marriage contract. The only doctrinal bases that courts and commentators cite are grounded in unreflective stare decisis sustained by little else than a Marxist belief that courts should take from people according to their ability and give to others according to their need.

That belief, however, could equally be applied to unmarried cohabitants who decide to part ways, since in almost every case one of them will have higher income and the other will have greater need. Yet courts (in most states) will not apply Marxist principles to require separating cohabitants to continue to support each other financially. Now that coverture has been abolished, what constitutionally significant aspect of marriage is it that still makes it fair and nondiscriminatory that a couple that lives together without benefit of marriage can part ways without either of them risking being required to provide for the needs of the other while married couples cannot?

If it is suggested that the obligation is voluntarily assumed as part of the marriage contract, then why is the promise to continue to support each other financially — even if one or the other unjustifiably leaves the marriage – never mentioned in the vows that couples exchange during marriage ceremonies?

Of course, not all contractual obligations are expressly stated. Some are implied. But why should the law assume that two able-bodied, rational adults with equal employment opportunities under the law implicitly agree that either of them may unilaterally choose to avoid working during the marriage and then demand that the other continue to subsidize that decision even after s/he leaves the marriage – whether the departure is justifiable or not?

And now that fault has been removed from divorce law, what exactly is the consideration that one spouse gives for the other’s promise of life-long financial support? Access to sexual gratification can’t be it. Prostitution is against public policy. Companionship? Roommates provide that to each other, too, but courts generally do not impose an implied obligation on roommates to provide life-long financial support to each other in exchange for their friendship. Obligations of loyalty, love, fidelity? With the advent of no-fault divorce, the law does not treat these as enforceable parts of the marriage contract.

Statute of frauds

Some guidance about the future of alimony reform might be gleaned from so-called “statutes of frauds.”

Most jurisdictions, although generally enforcing oral and implied contracts, have enacted statutes requiring certain kinds of contracts to be in writing in order to be enforceable. These laws are designed to prevent misunderstandings and false claims about the agreement, if any, the parties intended to make. Typically included within the coverage of these statutes are long-term contracts (e.g., contracts longer than one year) and promises given in consideration of marriage.5 An argument could be made that a promise to pay alimony in the event of a divorce should be required to be in writing in order to be enforceable, at least to the extent it represents an obligation to provide financial support to a spouse who unjustifiably breaches the marriage contract. (A no-fault state may prefer to make the requirement applicable to every alimony obligation.) Like any other statute of frauds, such a requirement could help prevent false claims and misunderstandings about the spouses’ respective responsibilities in the event of a divorce. At the same time, it would bring family law into harmony with basic precepts of contract law, constitutional law, and the modern legal status of women.

  1. codified at Minn. Stat. § 518.552, subd. 6
  2. Minn. Stat. § 518A.39.
  3. See, e.g., Hammurabi Code 137 (1754 B.C.); see also the Justinian Code (ca. 534 A.D.)
  4. Id.; see also Chester G. Vernier and John B. Hurlbut, The Historical Background of Alimony Law and its Present Statutory Structure, 6 Law & Contemp. Prob. 197, 198 (Spring, 1939).
  5. See, e.g., Minn. Stat. § 513.01.

How Sole Maternal Custody Laws Hurt Mothers

familia-1340246961Rl3

I’ve written before about how sole maternal custody laws are unfair to unwed fathers. And many people have written about how sole custody is bad for children. People don’t often stop to consider how sole maternal custody laws harm unwed mothers, though.

The unwed mother’s statutory right to sole custody

In many states, an unmarried mother has the sole and exclusive right to custody and contact with her child even if there is no doubt about who the father is. Statutes in these states specify that a father does not have any rights to custody, contact or parenting time (or “visitation,” as it historically was called) even after there has been a final adjudication of paternity. Nor does he acquire such rights by signing a valid and enforceable acknowledgement of paternity. Instead, he must initiate a court proceeding and convince a judge that that he is a suitable person to be “granted” the same parental rights that the mother is automatically granted by operation of law.

Needless to say, the havoc these laws have wreaked on fathers has been extreme. In some cases, it has led to the termination of parental rights due to the mother’s unilateral decision to put the child up for adoption before the father has been able to get a hearing on whether it is in his child’s best interests for him to have the legal rights of a father or not. Having exclusive custodial rights, mothers have been free to relocate to different states, or even foreign countries, frequently leaving fathers with no viable means to establish and enforce their rights. Fathers have good reason to be angry about these laws. As it turns out, single mothers should be angry about them, too.

The primrose path to a mother’s loss of rights

When a statute automatically gives a mother sole legal and physical custody of a child upon birth, the father is without any legally enforceable rights unless and until he commences a legal proceeding and persuades a judge to “grant” him rights. In the meantime, the mother is under no legal obligation to allow the father to have any contact with the child at all, much less let the child stay at the father’s home for a weekend. She can legally tell the father that she will not let him even talk to their child on the phone until he gets a court order requiring it.

As the custodial parent, she is responsible for the welfare of the child. She could reasonably believe it would be irresponsible to leave the child in someone else’s physical care, at least for an extended period of time.

She could also reasonably believe that preventing access might help protect her right to custody in the event the father files a motion for custody rights. Generally speaking, the longer a parent goes without maintaining regular contact with a child, the less likely he is to win a battle for custody.

Taking these two things into consideration, it would seem to be in a mother’s best interests to exercise her exclusive right to sole custody to the fullest extent the law allows.

The problem is that most courts, when called upon to decide a custody case, will consider a parent’s willingness to allow and encourage the other parent to maintain a meaningful relationship with the child.

This is a relatively recent addition to the “best interest” calculus. Ten years ago, not many judges gave this factor a whole lot of consideration. Today, though, a growing number of judges do. In fact, some judges assign a great deal weight to the negative effect of gatekeeping on children.

This means that a mother who exercises the legal right that a statute expressly gives her may very well find herself facing the prospect of losing custody of a child because she exercised it.

This trap for single mothers would not exist if, instead of a maternal sole custody statute, states had statutes providing for shared custody rights immediately upon paternity being adjudicated or the joint execution of an acknowledgement of parentage. Then both the mother and the father would immediately be put on notice that they each need to respect a child’s right to a relationship with both parents.

Fostering cooperation instead of acrimony

A statute that respects the parental rights of both mothers and fathers can also be expected to foster more cooperative parenting rather than the divisiveness and acrimony that all too often plague unmarried parents who are living separate and apart from each other. If parents understand that they each have enforceable legal rights of contact, then they may be expected to be a little more circumspect in their dealings with each other. They will also have a greater incentive to work out a schedule between themselves.

Acrimony and bitterness make people’s lives miserable. Single mothers are no exception. They are people, too.

Moreover, the longer a couple goes without trying to work together on a parenting plan, the harder it gets to begin. Therefore, starting the process as early as possible is critical.

Better voluntary compliance with support obligations

As proponents of shared parenting have pointed out, a parent with joint custody statistically is more likely to voluntarily support a child financially than a noncustodial parent is. This is largely because noncustodial parents, not surprisingly, feel disenfranchised. When a parent is treated as an equal, given the respect that is due a parent, and allowed to be actively involved with a child for substantial amounts of time, s/he is a lot more eager and willing to see that the child is thriving, including taking care of the child financially.

Lightening the load of parenting responsibility

Custody isn’t just a right; it’s also a responsibility. A parent with sole custody is solely responsible for getting the child to doctor and dentist appointments, helping with homework, attending to the child’s other needs, and caring for the child in innumerable other ways every day of the week. It’s a strenuous and demanding job for a stay-at-home mother. It is at least as difficult for a working mother. Why should the law excuse the father from those responsibilities simply because he is not married to the mother of his child?

Time for a change

Maternal sole custody statutes are unfair to fathers, unfair to mothers, and unfair to children. The time has come for states to replace them with laws giving both parents shared custody rights and responsibilities upon either an adjudication of paternity or the parents’ joint execution of an acknowledgement of paternity.

 

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My book, The History of Custody Law is available in paperback or as a Kindle e-book at Amazon.com:

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Bolden vs. Does: Eviscerating the parental rights of unwed fathers

dad_son

The U.S. Supreme Court’s denial of certiorari this year in the case of Bolden v. Does (In re Adoption of J.S.)1 is disappointing. This case presented the Court with a perfect opportunity to reconsider its questionable ruling in Quilloin v. Walcott.2 Instead of availing itself of that opportunity, the Court opted to let stand a Utah Supreme Court ruling that conditioning an unwed father’s retention of parental rights on proof of ability to raise and support a child, while not also imposing the same condition on unwed mothers, does not violate the Equal Protection rights of unwed fathers.

The facts

The pertinent facts were not in dispute. The parents were not married to each other. Father promptly (two weeks before the baby was born) filed a paternity petition in court seeking both an adjudication of paternity and custody rights. He offered to pay the mother’s birthing expenses, and he timely filed a sworn, notarized notice in the putative fathers registry.

The Utah statute, however, also required him to file a separate affidavit asserting his willingness to assume custody and disclosing his childcare plans. Apparently his attorney neglected to advise him of this additional requirement.

While the Father’s paternity/custody petition was pending, Mother placed the child with a couple that wished to adopt, and the couple commenced an adoption proceeding. After receiving notice that the couple intended to adopt his child without his consent, Father moved to intervene. At the same time, he filed the affidavit of childcare plans required by the statute. The lower court, however, held that it was too late, and proceeded to terminate his parental rights so that the adoption could go forward. Father appealed the decision, asserting that the affidavit requirement violated the Fourteenth Amendment He argued, among other things, that since an unwed mother is not required to file such an affidavit in order to preserve her right to oppose an adoption, requiring unwed fathers to do so violates the Equal Protection clause.

The law

In 1972, the U.S. Supreme Court ruled, in Stanley v. Illinois,3 that unwed fathers have constitutionally protected parental rights that are every bit as fundamental as those of unwed mothers. Six years later, however, in Quilloin v. Walcott, supra, the Court narrowed that ruling by limiting its application to only those fathers who demonstrate that they have assumed significant responsibility for the care of their children.

Time for a change

 Quilloin was decided in 1978, at a time when sex role stereotypes permeated every aspect of the American psyche and culture, including jurisprudence. Although some progress toward gender neutralization of custody law was being made, the maternal preference was still an explicit part of the statute and/or case law of every jurisdiction. Most people, including judges, believed that women are simply born with an instinctive desire and ability to raise children, while men are not. To the Quilloin Court, therefore, it made sense to place the burden of proof of willingness and ability to parent on fathers while at the same time giving mothers the benefit of a presumption of willingness and ability to parent.

Judicial rulings are supposed to be based on evidence, not unsupported assumptions. If a state were to require only female candidates to pass physical and psychological tests in order to become police officers, on the basis of an assumption that men – and only men — are born with a protective instinct and naturally superior physical strength, it would clearly be denying women the Equal Protection of the laws. It should be just as clear that state laws requiring only male parents to demonstrate ability to parent in order to retain parental rights violate the Equal Protection clause.

It is truly baffling that judges still cannot, or will not, see that. It’s 2015, folks.

Dissenting opinion

Associate Chief Justice Nehring filed an excellent dissenting opinion in this case. Here are a few excerpts that bear repeating:

“I dissent because even the most minimally ‘searching’ inquiry reveals the impermissible stereotyping at the root of Utah Code section 78B-6-121(3)(b)…. The affidavit requirement reflects a negative stereotype that is commonly wielded against unwed fathers: that they are uninterested in their offspring and ill-suited or incompetent caregivers.”

“Indeed, this stereotype is precisely the flip side of the same generalization that has long been applied to women—i.e., that they are naturally well-suited for the responsibilities of childcare and the home.”

“[T]here is no rational reason to assume that a father’s ability to fulfill the parental role is any less reliable than a mother’s.”

 

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My book, The History of Custody Law is available in paperback or as a Kindle e-book at Amazon.com:

Purchase at Amazon.com
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  1. 2014 Utah 51,  ___ P.3d. ___(2014)
  2. 434 U.S. 246 (1978)
  3. 405 U.S. 645 (1972)

Should Custody Law Be Abolished?

Dusty books

In a previous blog post1 I explained why custody designations still matter, in terms of their impact on legal rights. The bigger question behind that one is: Should custody labels still matter? To put it another way: Has the time come to relegate the whole concept of custody of children to the scrap heap of history?

The United Nations Convention the Rights of the Child

The question is not merely an abstract hypothetical. To the contrary, there appears to be a very definite trend, both in the United States and around the world, away from the concept of custody. The United Nations Convention of the Rights of the Child (“UNCRC”), for example, eschews the word custody. Instead, Article 9 of the UNCRC directs member countries to “ensure that a child shall not be separated from his or her parents against their will, except [in cases involving abuse or neglect, or where] a decision must be made as to the child’s place of residence.” Rather than referencing a  right of parents to custody of their children (referring instead to a child’s right to have the state order what it determines is in the child’s best interest), Article 9 requires member countries to “respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis….”

Shared parenting legislation

Nearly every U.N. country has signed onto the UNCRC. The U.S. Congress has refused to ratify it.2 Nevertheless, there is other evidence of a clear movement away from the concept of custody (or at least that particular word) in the United States, too. In particular, a growing number of states are transforming, or at least supplementing, their traditional custody laws with shared parenting and parenting plan legislation. These kinds of laws use terminology like primary residential responsibility and decision-making responsibility instead of physical custody and legal custody. Sometimes these laws expressly provide that parents may use other words besides “custody,” so long as the alternate terms are defined in a way that is understandable and enforceable.

Reducing acrimony and litigation

Understandably, not many family law mediators are enamored of the word custody. Fewer still are fans of the winner-takes-all, adversarial approach it connotes. Because neither parent wants to be the one who is deprived of that title and relegated to the role of “visitor,” it is a significant source of impasse in mediation. In many cases, it may actually be the only source of impasse. For this reason, many mediators will not address the issue (if they address it at all) until after all discussions of the details of the actual parenting time schedule and decision-making allocations have been completed.3

Any family court judge or attorney can attest to the fact that the lion’s share of litigation in family court involves a contest for ownership of the custody “prize.” If this incentive were removed, it stands to reason that there would be a sharp decline in litigation in family court. Parents would save literally thousands of dollars in attorney fees and related expenses like custody evaluators, forensic experts, witness fees, and so on.

Removing the winner-gets-the-kids concept would also remove the incentive for parents to focus on each other’s faults, and to “dig up dirt” on each other. It may not be reasonable to expect divorcees to co-parent blissfully, without conflict, but getting off to a less acrimonious start, one that encourages cooperation rather than competition, would certainly seem to have a greater chance of serving the interests of children than the existing system has.

The historical rationale

As explained in detail in other blog posts, and in my book, The History of Custody Law, the concept of custody has been around since earliest recorded human history. The traditional account provided by historians is that all through history, up until the Enlightened Age (i.e., the particular era of time in which the historian providing the account is living), children were viewed as economic assets having the  legal status of chattel. Under this view, an allocation of custody of a child between two parents was required for the same reason an allocation of ownership of any other marital property was required. The owner of property gets to make decisions about what to do with it, and who gets to use it. By dividing up a divorcing couple’s property, a court prevents future disputes over those kinds of decisions from arising. By the same token, “awarding” a child to one or the other parent makes it clear which parent gets to decide how to raise the child, who gets to spend time with the child, and how and when the time will be spent.

Those who have read my book, or who have actually read the cases that people cite for the proposition that custody was governed by principles of property law at some time in American history, know that is not true. In America, courts have always regarded the best interests of the child to be the paramount consideration in custody cases. It is true, though, that courts have been at a loss to discover a way to address the question of what is to happen to the children after a divorce other than to say that one or the other parent will get them and the other parent will have a right to  have contact with them from time to time – an outcome analogous to an award of title to property (custody) subject to an easement of use (visitation.)

Do “physical custody” and “visitation” labels make sense anymore?

In the nineteenth and early twentieth centuries, custody carried with it the power to determine at what times, and where, the noncustodial parent would be allowed to visit his child. Since a noncustodial parent’s contact with a child frequently occurred in the mother’s home, it made sense to call it visitation.

When courts began broadening visitation to include overnights and entire weekends, or even an entire week of time during summer vacations, the justification for calling it “visitation” disappeared. Accordingly, many states have enacted legislation requiring courts to use the term “parenting time” instead.

Since courts can and do designate a child’s “primary physical residence” even in cases where joint physical custody is awarded, it is difficult to see what essential function the term physical custody serves anymore. A parent who has the right to have possession of a child outside of the other parent’s home, even if only on alternate weekends, has a right to possession of the child on those weekends. Why not simply call it what it is, then — alternating periods of physical custody? More to the point, though, why even call it custody at all? Why not simply call any time a child spends with a parent “parenting time” and dispense altogether with calling one, the other, or both parents “physical custodians”?

Legal custody

Most (though not all) states distinguish between legal and physical custody. Legal custody refers to decision-making authority. Physical custody refers to the right to possession. Unlike physical possession time, which can be alternated between two parties throughout the year, decision-making authority is not as simple. A judge cannot simply decree that the mother will decide which school a child will attend half of the year, and the father will select the school for the rest of the year; or that the mother will decide whether their son will be circumcised during the first year of his life, and the father will make that decision the following year. Some kinds of decisions can only be made once.

It is not necessarily the case, though, that it is in a child’s best interest to give one parent sole authority to make all decisions affecting the child. It is possible, for example, that one parent may have greater knowledge of, and interest in, education, but not religion, while the other parent has a greater concern about religious upbringing than choice of schools. Allocating decision-making responsibilities in a more careful, reasoned manner would seem to serve children’s interests better than conferring the title of “legal custodian” with all decision-making power to one parent alone.

Third party custody

One way the custody concept is useful is in distinguishing parental rights from the rights of third parties. As the U.S. Supreme Court and common law judges have said many times, a parent’s right to the custody of his or her children is superior to that of any other person. It is difficult to express this principle of law without using the word custody.

One way to do it would be to include the rights of physical possession and decision-making authority within the definition of parental rights. Currently, things like the right of access to medical records and the right to attend school conferences are included in statutory lists of parental rights. Rights of physical possession and decision-making authority should also be included in the list.

This approach would have the added advantage of reminding courts that custody is every bit as important a right as, say, access to school records. Just as a judge is not free to terminate parental rights of access to school records absent a showing that such access puts the child at risk of harm, so a judge should not be free to terminate a parent’s rights to physical possession and decision-making authority unless it is shown that such rights put a child at risk of harm. A judge should not have the power to remove children from their parents simply because he believes another person might have better parenting skills, or a greater ability to send the children to a private school, for example.

Of course, there will always be situations involving child abuse, neglect or endangerment – or the death or mental or physical incapacity of a parent — in which a transfer of possession and/or decision-making authority to a non-parent will be necessary to protect a child from harm. There is no reason why these non-parental caretakers could not be called guardians rather than “custodians,” though.

Cordination with other laws

The biggest challenge presented by a proposal to eliminate custody from the law involves coordinating the change with existing law. A legislature considering eliminating it will need to review all of its statutes and administrative rules and regulations to ensure that eliminating the concepts of custodial and noncustodial parents from the law will not have unintended consequences, or make other laws and rules impossible to apply.

For example, how will the change affect state or federal housing assistance programs that  limit eligibility to custodial parents? Child support laws will need to be rewritten if they are couched in terms of custodial and noncustodial parents. Standards for modification of custody will need to be revised.

The effect on jurisdiction and enforcement in other states will also need to be considered. For example, many states have enacted a law known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA.) A state that is thinking about eliminating custody designations should consider not only the impact the change will have on how the UCCJEA is applied, but also how it will impact the other laws, and variations on the UCCJEA, that other states have enacted.

International law will also need to be considered. The Hague Convention, for example, provides ample means for securing an abducted child’s return on behalf of a custodial parent. Securing the return of a child without a custody order in place may be more problematic.

Conclusion

Eliminating the concept of routinely making awards of custody of children whenever their parents do not live together admittedly would be a radical departure from thousands of years of legal tradition. It may not be something that can be achieved overnight, or  with a single stroke of a pen. Nevertheless, at a time when nearly every country in the world takes pride in itself for conceiving of children as human beings rather than property, it could be worthwhile for more policy-makers to give serious consideration to moving away from the routine judicial practice of making what amount to declarations of child ownership anytime two parents do not live together.

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My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:

Purchase The History of Custody Law
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  1. “Why the Custody Label Matters”
  2. Various reasons have been given for Congressional refusal to ratify the UNCRC. For example, members of Congress have expressed concern that it might have the effect of outlawing corporal punishment; or that it might mean that children cannot be put to death, or imprisoned for life without possibility of parole; or that farmers could no longer require children under 12 to work under dangerous conditions. There has also been a concern among fiscal conservatives that the provisions classifying education, nutrition, health, and recreation as rights could create significant new entitlements for children, resulting in unfunded mandates.
  3. See, e.g., McKnight, Marilyn S. and Stephen K. Erickson, The Plan to Separately Parent Children After Divorce, in Divorce and Family Mediation 129-54 (Jay Folberg et al., eds. 2004.)

Effect of heterologous insemination statutes on parental rights

(Photo  by Screen Classics (Test Tube Babies (1948) at the Internet Archive) [Public domain], via Wikimedia Commons)

(Photo by Screen Classics (Test Tube Babies (1948) at the Internet Archive) [Public domain], via Wikimedia Commons)

To enable married couples to become legal parents despite the husband’s impotency, and to obviate the need for a formal adoption, several states have enacted statutes providing that under certain circumstances a child born to a married woman by means of artificial insemination is legally the child of her husband.

Some of these statutes provide that the husband’s consent is all that is required to render a child conceived by heterologous insemination1 legitimate. The Oregon statute, for example, simply declares: “The relationship, rights and obligation between a child born as a result of artificial insemination and the mother’s husband shall be the same … as if the child had been naturally and legitimately conceived … if the husband consented to the performance of artificial insemination.”2

In most states, the husband’s consent is presumed.3

The Uniform Parentage Act (UPA), which has been enacted in a few states, makes parental status a function of both consent and intent. It provides that a man who furnishes sperm or consents to a woman’s artificial insemination with the intent of becoming a parent is a parent.4

Several states require, in addition to consent, that the insemination be performed in a specified way, such as under the direction of a licensed physician. If the couple complies with the statutory conditions, then the presumption of legitimacy is not rebuttable with evidence that a sperm donor is the biological father.5

Courts are split as to the effect of a couple’s or a sperm donor’s failure to comply with statutory conditions. Some courts attempt to give effect to the parties’ intention to bar the donor from asserting parental rights despite their failure to comply with statutory conditions.6 Among these courts, some require substantial compliance with the statutory requirements.7 Other courts disagree, holding that unless there is full and complete compliance with all statutory requirements, the case must be decided on the basis of common law principles without the benefit of the statutory provisions.8 This could include, to the extent applicable in a particular jurisdiction in a particular case, the presumption of legitimacy, the doctrines of equitable estoppel and promissory estoppel, implied child support contracts9 and any common law rulings that may exist in the state concerning the legitimacy of children conceived by artificial insemination with the husband’s consent.

Statutes addressing heterologous insemination typically contain a provision declaring that the sperm donor is not a legal parent of the child under the circumstances set out in the statute.10

This kind of statute may be unconstitutional as applied to sperm donors who contracted with the mother for parental rights prior to the conception of the child.11 Modern statutes, therefore, often contain a proviso that the donor may be the legal parent of the child if the parties so agreed prior to the conception of the child.

In states that have enacted heterologous insemination statutes, then, it is possible that a sperm donor could have standing to ask for custody or visitation rights if the parties agreed that he would retain parental rights, or if the parties have not complied or substantially complied with the requirements of the state’s heterologous insemination statute.12 What rights a court in such a state will grant the donor depend on the circumstances of each case, as the court will grant only such rights as it deems to be in the  best interests of the child. The desire of the parents is recognized as an important “best interest” factor in every jurisdiction, though, and the parties’ contract, if any, is good evidence of the parents’ wishes. Thus, even while requiring the donor to pay child support (because waivers of support generally are not enforceable) a court could use the fact that the sperm donor agreed not to seek custody or visitation as evidence that an award of custody or visitation to him is not in the child’s best interests. This would leave the donor in the position of owing a support obligation for a child he cannot visit and as to whose upbringing he has no input. Obviously, sperm donors would be well advised to familiarize themselves with their state’s heterologous insemination statute before proceeding. Husbands would be well advised to do so, too.

The original reason for the enactment of heterologous insemination statutes was to enable married couples with an infertile husband to use sperm from an anonymous donor to conceive a child, without having to go through the process of terminating the donor’s parental rights and the completion of a formal adoption of the child by the husband. Several states, however, have extended the coverage of their statute to single women, too. Statutes in these states may bar a sperm donor from asserting rights to custody or visitation whether the mother is single or married.13

Under state same-sex marriage laws, the lesbian partner of the mother is considered a “husband” for purposes of laws conferring parental rights on the husbands of artificially inseminated women.14 If a lesbian couple has not entered into a legal marriage, the mother’s lesbian partner would not acquire any parental rights under this kind of statute.15

 

  1. Heterologous insemination refers to the insemination of a woman using the sperm of a man who is not married to her. Homologous insemination refers to the insemination of a woman using her husband’s semen. The legal effect of homologous insemination is not substantially different from that of insemination by means of regular sexual intercourse.
  2. OR. REV. CODE § 109.243 (2011) (This provision was enacted into law by the Legislative Assembly but was not added to or made a part of Oregon Revised Statutes chapter 109 by legislative action.) Under a statute of this kind, the insemination need not be performed by or under the direction of a physician. In re Marriage of A.C.H. & D.R.H., 210 P.3d 929 (Or. Ct. App. 2009)
  3. The presumption of consent is distinct from the presumption of legitimacy. Even if the presumption of consent is rebutted, it may still be necessary to present evidence to rebut the presumption that the husband is the father of any child born or conceived during the marriage.
  4. UNIF. PARENTAGE ACT § 703 (2002)
  5. See, e.g., CAL. FAM. CODE § 7613(a) (2012), which provides:

    If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband’s consent must be in writing and signed by him and his wife. The physician and surgeon shall certify their signatures and the date of the insemination, and retain the husband’s consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician and surgeon’s failure to do so does not affect the father and child relationship….

  6. See, e.g., Laura G. v. Peter G., 830 N.Y.S.2d 496 (Sup. Ct. 2007) (holding that the husband is the legal father even though his consent was not in writing, as required by the statute.)
  7. See, e.g., Lane v. Lane, 912 P.2d 290 (N.M. 1996)
  8. See, e.g., Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986) (holding that a sperm donor’s parental rights and responsibilities are not barred if the parties failed to use a licensed physician as required by statute); E.E. v. O.M.G.R., 20 A.3d 1171 (N.J. Super. Ct. Ch. Div. 2011) (same); see also Mintz v. Zoernig, 198 P.3d 861 (N.M. Ct. App. 2008) (holding that a sperm donor is the legal father of a child if the applicable statute relieves anonymous donors of parental rights and responsibilities, and his anonymity has not been maintained.)
  9.   For example, it has been held that even if the parties fail to comply with a statutory requirement that the husband’s consent be in writing, the court may nevertheless impose a child support obligation upon him on the basis of equitable estoppel or an implied support contract. R.S. v. R.S., 670 P.2d 923 (Kan. Ct. App. 1983)
  10. See, e.g., CAL FAM. CODE § 7613(b) (2012), which provides:

    The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.

  11. C.O. v. W.S., 639 N.E.2d 523 (Ohio 1994) (suggesting that doing so would violate the Equal Protection rights of the sperm donor.)
  12. See, e.g., Jhordan C. v. Mary H., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986) (holding that a donor may assert parental rights of custody and visitation if the parties carry out the artificial insemination without the use of the statutorily mandated licensed physician.)
  13. See, e.g., CAL. FAM. CODE § 7613(b) (2012); Steven S. v. Deborah D., 25 Cal. Rptr. 3d 482 (Cal. Ct. App. 2005)
  14.   Della Corte v. Ramirez, 961 N.E.2d 601 (Mass. App. Ct. 2012); In re Parentage of Robinson, 890 A.2d 1036 (N.J. Super. Ct. Ch. Div. 2006) (holding that same-sex marriage partners are parents to the same extent as heterosexual marriage partners are); Karin T. v. Michael T., 484 N.Y.S.2d 780 (Fam. Ct. 1985); cf. Debra H. v. Janice R., 930 N.E.2d 184 (N.Y. 2010) (holding that a civil union is to be treated the same as a marriage for purposes of a state’s artificial insemination laws); Shineovich v. Kemp, 214 P.3d 29 (Or. Ct. App. 2009) (holding that Equal Protection requires that a mother’s lesbian domestic partner must be treated as a legal parent of her partner’s child to the same extent and under the same circumstances as a husband in a heterosexual marriage would be.)
  15. See M.S. v. C.S., 938 N.E.2d 278 (Ind. Ct. App. 2010); cf. In re Paternity of Christian R.H., 794 N.W.2d 230 (Wis. Ct. App. 2010) (holding that same-sex partners do not acquire parental rights under the state’s artificial insemination statute in the way that married couples do.)

Same-sex marriage: Obergefell et al. v. Hodges

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The U.S. Supreme Court has issued its long-awaited decision on same-sex marriage. By a 5-4 vote, it has ruled that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize the validity of same-sex marriages entered into in other states.

I anticipate there will be cries of “judicial activism,” but this decision really is not an example of that. Here’s why.

The Fourteenth Amendment contains two equally important clauses: (1) a guarantee of Due Process before any State may deprive any citizen of liberty; and (2) a guarantee of Equal Protection of the laws for all citizens. The Court’s previous interpretations of these clauses make the outcome in this case inevitable.

The Court long ago decided that the Due Process Clause protects personal choices in matters that are central to individual dignity and autonomy, including choices like whether, when and with whom to start a family. Eisenstadt v. Baird, 405 U. S. 438 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965). More significantly, the Court decided, in Loving v. Virginia, 388 U. S. 1 (1967), that the freedom to choose whom to marry is a fundamental liberty interest protected against state interference by the Due Process Clause of the Fourteenth Amendment.

Loving invalidated a miscegenation statute (a law prohibiting people of different races from marrying.) There is nothing in the Constitution that says only racial minorities enjoy fundamental liberty rights. The Court made that clear twenty years later when it ruled, in Turner v. Safley, 482 U. S. 78 (1987) that the right to marry is so fundamental that States cannot even deny it to convicted criminals who are serving time in prison.

When a State legislates in ways that burden fundamental rights, it should be required to demonstrate some compelling, non-discriminatory justification for doing so. That means it is not enough to simply say, “Homosexuality is bad” or “It’s against most people’s religion.” If constitutional liberty is to mean anything, it must mean that the majority does not get to impose its will on a minority simply because it is the majority.

That it might be possible to come up with some kind of secular justification also is not enough. At one time, States prohibited the issuance of marriage licenses to “deadbeat dads.” As a secular justification, States cited the need to protect women and children from men who are unable to fulfill responsibilities of fatherhood. The Supreme Court struck down these laws, explaining that something more than a rational basis for discrimination impairing a fundamental right is needed to meet Fourteenth Amendment requirements. The state must demonstrate some compelling need, even greater than the need to ensure that children are adequately provided for financially, to justify discrimination impairing a right as fundamental as the right to marry. Zablocki v. Redhail, 434 U. S. 374 (1978).

States have not been able to articulate a compelling, non-discriminatory need to regulate individual choices of marriage partners in this manner. As a result, they can prevail neither against the Due Process Clause nor against the Equal Protection Clause.

That is really all the Court needed to say to explain its decision. The additional language about “the transcendent purposes of marriage,” or the “long history of disapproval of [gay and lesbian] relationships” working “a grave and continuing harm serving to disrespect and subordinate gays and lesbians” really wasn’t necessary. Constitutional rights shouldn’t have to be preceded by a long history of denial in order to become deserving of enforcement.

It also was not necessary for the Court to smear unmarried parents and their children, saying that children of unmarried parents “know” their families are “lesser” than married families, and that being born to unmarried parents “harms and humiliates” children.

As the hue and cry over this decision mounts (the same-sex part, not the part that apparently seeks to re-stigmatize children born out of wedlock), it would serve people well to keep in mind that the Supreme Court’s job is to interpret the Constitution, not to be everybody’s overlord. Declaring that States can no longer deny marriage licenses to gay and lesbian couples does not mean that your church has to perform gay and lesbian marriages. Your church can continue to preach that homosexuality is an abomination if it wishes to.

Properly understood, the decision actually reaffirms your right to choose to marry a person of the opposite sex without governmental interference. It should come as a relief to know that no State can force you to be either homosexual or single.

The Future of Custody Law Reform

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At the current time there is a professed aversion to custody “labels” in legal circles, coupled with a shift of emphasis from deciding who gets custody, to deciding how parental decision-making and time with children will actually be structured between two parties. The latter is sometimes described as a “shared parenting” paradigm.

Insofar as it forces courts to make particularized determinations in preference to declaring all-or-nothing outcomes, shared parenting legislation can be viewed as a positive development. As I have demonstrated in a previous blog post, though, the custody “label” really does continue to matter even after shared parenting legislation is enacted. This is why shared parenting legislation typically requires shared parenting orders to make a custody designation, even if it is “solely for the purposes of enforcement.” Short of a nationwide (and worldwide) agreement to abolish custody designations, it will continue to be necessary for courts to address who gets custody, no matter how hard judges and legislators try to deflect attention away from that problem.

The injustice that gave rise to the movement for presumptive joint custody cannot simply be wished away. It may be possible to subdue the problem by ignoring it for a while, but at some point it will become necessary to address it head-on. When that time comes, it will be useful to have an understanding of the key issues that need to be addressed when considering presumptive joint custody reforms.

Legal vs. physical custody

Legislation establishing a presumptive right to joint custody should clearly state whether it applies to legal custody, physical custody, or both.

Definitions

Definitions of joint legal custody and joint physical custody should be provided. The definitions should simply state, in broad terms, what the terms mean. For example, “joint legal custody” could be defined to mean that responsibility for making major decisions concerning a child is shared by the parties; and “joint physical custody” could be defined to mean that physical custody, i.e., possession and responsibility for ordinary day-to-day decisions about care, is shared by the parties.

Reformers should avoid the temptation to try to make definitions do the work that is more appropriately done by a substantive enactment.

Defining joint physical custody to mean an equal division of time, for example, could have serious unintended consequences. It would force a court to issue a sole custody order even in situations where it might otherwise have been inclined to order joint custody. In the absence of such a limited definition, a court may be inclined to characterize an arrangement calling for a 50.1%/49.9% division of time as “joint physical custody.” If, however, the statutory definition of joint physical custody is amended to mean an equal amount of time, then the court would be required to classify the parent with 4,384 hours/year with the child as the child’s sole custodian, and the parent with 4,382 hours/year as the noncustodial “visitor.”

Moreover, if a couple undergoes a change of circumstance making an exactly equal division of time impracticable – such as an employer’s requirement that one of them relocate a considerable distance away – this, in itself, could then provide grounds for a motion to declare the resulting change in parenting time schedule has caused the order to become one for sole custody, even without any showing of grounds for modification.

The better approach would be to restrict definitions to their intended purpose, i.e., to define the meaning of terms. If you want to require courts to order a specified minimum amount of time for each parent in every case, then do that by enacting prescriptive legislation.

Parental rights

Based in part on a mistaken belief that parental rights are inconsistent with children’s rights, and in part on a movement toward greater legal recognition of non-traditional “de facto” families, the concept of parental rights has fallen into disfavor among a lot of policy-makers these days. Nevertheless, there is a long line of U.S. Supreme Court decisions recognizing that parents have a fundamental right to the custody of their children, and that states that deny parents this right violate the due process clause of the Fourteenth Amendment. Accordingly, presumptive joint custody legislation should be drafted in such a way as to be constitutionally compliant with the rights of parents to the custody of their children.

Unless the intention is for parents to be required to share custody with non-parents, a presumptive joint custody proposal should make it clear that it applies only in contests between parents.

Properly conceived, the purpose of presumptive joint custody legislation is to preserve the existing rights of both parents to the custody of their children unless good reason for terminating the custody rights of one of them is established. Historically, judges simply assumed that the divorce itself was good reason. That assumption, however, was based on a conception of children as items of property. Courts felt a need to allocate each item of property to one or the other parent, primarily for the purpose of clearing title to the property so that the validity of future transfers of title to others would be more certain. To the extent our civilization has progressed to the point that children are no longer viewed as items of property, a divorce should no longer constitute good reason for either extinguishing or restricting parental rights.

The opinions of child development and psychology experts about the relative benefits of sole and joint custody for children could be relevant and useful to the question whether presumptive joint custody should apply in custody contests between third parties. In these kinds of cases, neither party has a natural right to custody because neither party is a parent. Third-party rights to custody of children exist if and only if a court grants them. Since neither party in a third-party custody dispute has an existing right to custody, the court must decide the case entirely on the basis of a de novo evaluation of what is most beneficial for the child. A list of “best interest” factors may be useful in these situations, as might a presumption favoring either sole or joint custody that is enacted on the basis of a consideration of the opinions of child development experts.

In disputes between parents, though, the impetus for presumptive joint custody legislation is not that a consensus has developed among experts that a greater quantity of contact with both parents is usually better for children’s development. That may well be true. But even if it could not be established that equal amounts of contact is either better or worse for children than sole custody is, the truths would remain that parents have a constitutionally protected right to custody of their children; that children are not property; and that they should not be divided like property in a divorce unless some constitutionally valid reason for terminating or restricting parental rights is demonstrated.

Grounds for rebuttal

Any enactment of a presumption must address the grounds that may be used to rebut it. In thinking about this, it is important to understand that facts that are relevant to joint legal custody are not necessarily relevant to joint physical custody, and vice versa. It is important, therefore, to address the grounds for rebuttal of each of these kinds of presumptions separately.

Legal custody

The grounds for rebuttal of joint legal custody should relate to decision-making.

It is not constitutionally permissible for a judge to substitute her own opinions about a child’s religious and educational upbringing for a parent’s. Instead, courts are constitutionally required to presume that parents act in their children’s best interests. Accordingly, a presumptive joint legal custody statute may authorize judges to find a presumption in favor of joint legal custody to be rebutted if there is evidence that a parent’s decisions about a child’s upbringing are harmful to the child, or that there is a risk that they will be.

Surprisingly few states have made this the basis for rebutting a presumption of joint legal custody. Instead, the most frequently listed basis for rebutting joint legal custody is “inability to cooperate.” Some even go so far as to shift the burden of proof to parents seeking joint legal custody to convince the court that they have this ability.

An inability to cooperate does appear to be relevant to joint legal custody, or at least more relevant to joint legal custody than to joint physical custody. If the parties are completely unable to cooperate, then they are not going to be able to make joint decisions concerning their children.

Care should be taken, however, to prevent over-application of the “inability to cooperate” grounds for rebuttal. Willingness to cooperate is completely within each party’s control. Because of this, it is very easily manipulated. A party seeking sole instead of joint legal custody may circumvent the presumption simply by refusing to cooperate with the other party. Therefore, it may be desirable to neutralize the benefit of an unreasonable refusal to communicate or cooperate. For example, the legislation could provide that a court may not make a finding of inability to cooperate or communicate on the basis of a party’s unreasonable refusal to communicate or cooperate. A more aggressive approach to encouraging greater cooperation and communication would be to specify that a party’s unreasonable refusal to communicate or cooperate with respect to a major issue concerning the child shall be admissible as evidence of a need to assign sole decision-making authority with respect to that issue to the other party.

Also, legislation should recognize that a present ability to communicate and cooperate may not always be necessary in order to reach decisions on issues going forward. A judge may include in the order a specified means by which a matter is to be decided in the event of impasse. In lieu of terminating one parent’s right to legal custody in the event of impasse, legislation might require the parties to attempt to resolve their disputes through mediation, or to submit their dispute to a parenting consultant who will make the decision for them on the basis of an independent evaluation of the child’s best interests. Yet another approach might be to allocate to each parent separate decision-making responsibility for specific kinds of decisions.

Physical custody

States that have enacted presumptive joint custody have made it rebuttable by showing that the parties are not cooperative. While it is clear that cooperativeness is relevant to joint legal custody, it is not clear why it is relevant to joint physical custody. Unlike major decisions affecting religion and education, a court may specify a parenting time schedule for the parties if they are unable to agree. Accordingly, there does not appear to be any rational basis for making a parent’s right to physical custody conditional upon a demonstrated willingness or ability to cooperate with the other parent.

Many proposals for presumptive joint custody also link it to the “best interest of the child” factors. By framing the presumption as an inference that joint physical custody is in the best interest of the child, they link rebuttal of the presumption to the factors set out in a state’s “best interest factors” statute.

One problem with this approach is that it will not really change anything. If joint custody is rebuttable by citing any of the factors set out in a “best interest” statute, then custody cases will continue to be about who scores highest on the statutory “best interest” factor(s) that a particular judge decides to hone in on in a particular case. The same problem of unreviewable exercises of judicial discretion to circumvent parental rights will continue to exist.

According to the United States Supreme Court, courts must presume that parents act in their children’s best interests, and judges must be careful not to substitute their own views about which lifestyle choices and caregiving styles and patterns are best for a child, in place of a parent’s. Yet “best interest” statutes invite, or even require, judges to do just that.

Remember, too, that the formulation of most of these factors occurred during a time when courts assumed that children, like all other marital property, needed to be distributed to one or the other parent upon divorce. The reason for setting these factors out in statutory form was to require courts to cite some basis other than sex for declaring one, and only one, parent the winner of an “award” of the category of marital property consisting of children. They were not designed to address the question whether sole or joint custody is in a child’s best interest.

Rather than tying rebuttal to the statutory “best interest factors” list, then, some thought should be given to the kinds of facts that should need to be proven in order to justify a refusal to preserve a particular parent’s natural right to custody of her child, keeping in mind that whatever reasons are ultimately selected should not be such as would involve a judge in substituting his or her own opinions about what is in a child’s best interests in place of those of a parent.

Guidance in this respect might be found in a state’s statutes pertaining to the circumstances in which a court may restrict a parent’s access to her children, or order supervision of a parent’s time spent with a child. Grounds vary from state to state, but may include such things as abandonment; inadequate supervision; incarceration; physical or sexual child abuse; causing or permitting mental injury to a child; physical, educational or emotional neglect; medical neglect; inadequate control over a child (habitual runaway, e.g.); mental or emotional abuse; exposure to domestic violence; habitual drug or alcohol use impairing parenting ability; mental illness, mental deficiency or emotional disturbance that places a child at risk of physical or mental injury; endangerment; encouragement or approval of a child’s criminal act; a lengthy out-of-home placement; chronic and unreasonable interference with a parent’s custody or visitation rights; disparagement of the other parent; or risk of child abduction.1

Of course, the parties’ agreement to a sole custody arrangement should also be deemed a sufficient basis for rebutting the presumption.

Standard of proof 

Presumptive joint custody legislation should also address the standard of proof that is required in connection with rebutting the presumption.

The three basic standards of proof, in order from the easiest to the most difficult to satisfy, are: preponderance of the evidence; clear and convincing evidence; and proof beyond a reasonable doubt. “Reasonable doubt” is applied in criminal cases. The other two generally are applied in civil cases.

The “clear and convincing evidence” standard is normally required in cases where an equitable remedy is sought, or where a constitutionally protected fundamental right is implicated.

Structuring time when joint physical custody is ordered

Legislation establishing a presumption in favor of joint physical custody does not need to address how time with the children will be structured between the parties. It may simply state the existence of a presumption and then leave it to the parties to decide upon a physical placement schedule.

In the interest of reducing litigation, however, a state enacting presumptive joint physical custody may want to consider establishing, in addition, some method or guideline for allocating time between the parties.

One approach would be to require the order to either establish a schedule or specify the means by which the parties will develop their own (e.g., mediation, parenting consultant, etc.)

Another approach would be to require the parties to submit a parenting plan to the court with specific provisions relating to the allocation of parenting time and decision-making responsibility to each party. Each party could be required to submit a plan separately if they are unable to agree on one, leaving it to the judge to decide between them or to impose one of his own making.

Because there will always be cases in which the parties are unable to agree, there will always be a need for a standard by which a judge is to make these kinds of decisions when called upon to do so.

A preference for an equal or substantially equal division of time is one idea for a standard. On the other hand, some believe that a goal of joint custody should be to make a child’s postdivorce life as similar as possible to his predivorce life.2 For those who adhere to this view, the ALI’s approximation rule would be the appropriate standard. As an alternative to either approach, a legislature could develop a list of factors relevant to the allocation of physical time between two parties, such as geographic proximity; the parents’ work schedules; the children’s school schedules; the wishes of the parents and the children; transportation needs and capacities; impact of a proposed schedule on a child’s physical or emotional health, well-being and development; or possibly other factors.

In addition to, or instead of, any of the above, legislation might specify a minimum amount of time to which a joint physical custodian shall be entitled. For example, legislation might provide that unless they agree otherwise, each joint physical custodian is presumptively entitled to at least X percent of the parenting time (where “X” represents the desired minimum.)

Care should be taken to ensure that standards affecting the allocation of time between joint physical custodians are not conflated with standards relating to the right to physical custody. For example, the fact that a parent lives a great distance away from the other parent could be an important consideration when developing a schedule of alternating periods of physical placement between joint custodians, but it does not logically follow that it is also a reason for denying a parent joint custody of her children.

Agreements

Substantive due process mandates a presumption that parents act in their children’s best interests. Legislation, therefore, should make it clear that courts normally must approve parental custody and parenting time agreements unless they are found to be harmful to the children. The legislation should also be clear about the circumstances under which a court may reject the parents’ agreement. Those circumstances should include not only a finding of harm, but also ordinary contract defenses like fraud, mistake and duress.

Existing custody statutes typically permit a court to adopt the parents’ agreement “if the court determines it is in the best interests of the child.” In so providing, they essentially mandate courts to substitute their own judgments about what is best for children for those of the children’s parents. This nullifies the constitutionally mandated principle that parents must be presumed to act in their children’s best interests. Therefore, a legislature that is concerned about the constitutionality of the laws it enacts may wish to consider the propriety of statutory language giving courts broad powers to substitute their own opinions in place of the parents’ determination of what is in their children’s best interests.

Example. State A has enacted a “best interests” statute that lists, as factors court must consider when deciding custody, “which party has been the child’s primary caretaker.” The statute further provides that a court must approve the parents’ agreement as to custody unless it is not in the child’s best interests. Now State A enacts a presumption in favor of parental joint legal and physical custody, rebuttable by evidence that it is not in a child’s best interests. Tom and Katie submit their joint custody agreement to a judge in State A. The agreement acknowledges that Katie has been the primary caretaker, but states that they plan to share responsibilities almost equally now. Both parents are equally fit, and neither has harmed or is a danger to their child. They await the judge’s decision.

Reviewing the agreement, the judge believes it would be harmful for the child to be “shuttled back and forth” between homes. He has no evidentiary basis for this belief; it’s just something he once read in a bar association article that was penned by a sole-custody advocate.  If the presumption has been framed solely in terms of the “best interest” standard, the judge may actually cite the agreement as a basis for an award of sole custody to Katie if the state’s “best interest” statutes lists “which parent has been the primary caretaker” as one of the factors. Many do.

In short, presumptive joint custody legislation should take care to ensure that statutory provisions relating to agreements to share joint custody are subject to judicial nullification only on the basis of the kind of finding that would suffice to rebut the presumption in favor of joint custody.

One more thing to consider about agreements: If a particular kind of division of time (e.g., an equal time requirement, the approximation rule, or a presumptive minimum) is specified in a presumptive joint custody proposal, then the proposed legislation should address whether the presumption will continue to apply in the event the parents agree to a different allocation of time.

Dispute resolution

Mediation or some other means of resolving disputes about major decisions affecting the child is critical to the viability of joint legal custody. It also may be useful for resolving disputes about joint physical custody schedules.

Unlike physical custody or visitation, where parties may have recourse to the courts to resolve a dispute for them if they are unable to agree, a court is not well equipped to make major decisions about children’s education, health care and religious upbringing in the event the parents are unable to agree. Indeed, courts are constitutionally prohibited from making certain kinds of decisions for parents. For example, the First Amendment prohibits courts from choosing a church or a particular religion for a child. Accordingly, any legislative enactment establishing a rebuttable presumption of joint legal custody ideally should address how a decision is to be made in the event the parties cannot reach agreement on a major decision affecting the child.

One approach would be to require a court to assign final decision-making power to one of the parties in the event they are unable to reach an agreement on a particular major educational, religious or health-care decision affecting the child.

The drawback to giving one party “the final say” over all decisions is that it is effectively the same thing as granting that party sole legal custody.

An alternative would be to require a court to allocate final decision-making power over different kinds of decisions between the parties (e.g., assigning one party the final say in health-care decisions, while the other party has the final say in matters of education and religion.)

Yet another approach would be to require the parties to attempt mediation. If mediation is unsuccessful, or if the parties agree to forego it, a court might appoint a parenting consultant with the power to make binding decisions for the parties.

To encourage cooperation and reasonableness during dispute resolution processes, legislation might provide that an unreasonable refusal to cooperate in joint decision-making may be grounds for an award of sole legal custody to the other party.

Move-aways

Many states, although not prohibiting interstate moves by parents, require a custodial parent to obtain either the other parent’s permission or a court order determining that the move is in the child’s best interests. The language in a particular state’s move-away statute may need to be revised if rights and obligations are couched in terms of “the custodial parent” and “the noncustodial parent,” but is silent about joint custodians. A joint physical custodian should not possess any greater privilege to move out of state without the other parent’s permission than a sole custodian enjoys. By the same token, joint physical custodians should have at least as much power to grant or withhold permission for the other parent’s move as a noncustodial parent enjoys.

The standard that courts apply to determine whether a move to a different state or foreign country is in a child’s best interests may also need to be revised. The courts of some states presume that a custodial parent’s move is in a child’s best interests if it is beneficial to the custodial parent. The legislature in a state in which courts have adopted this rule may need to assess whether the rule needs to be altered to take account of the possibility of joint physical custodians. When there are joint custodians, which custodial parent’s interests is a court to consider – the one who is moving, or the one who remains? It would not seem to be possible to decide the issue on the basis of the best interests of both parents, since their interests in this situation conflict.

Rethinking the underlying idea of equating a child’s best interest with what is in the custodial parent’s best interest also might not be a bad idea.

Modification 

A legislature adopting a joint custody presumption should consider its impact on the standard for modification of custody. Most states draw a sharp distinction between the standards applicable to modification of custody and those applicable to modification of a parenting time schedule. Legislatures typically have set the bar very high for modifications of custody. In many states, merely showing that a change to the custody order is in a child’s best interests will not be enough. Unless the parties agree to the change, it will be necessary to establish, in addition to the fact that the change is in the child’s best interests, proof of endangerment or impairment of the child’s health or safety. By contrast, modifications of parenting time rights or a parenting time schedule may be made at any time, requiring only a showing that a requested modification is in the child’s best interests.

The issue of the allocation of physical placement time between joint physical custodians is really not different, in substance, from the issue of how physical placement time between a custodian and a person with visitation rights is to be allocated. There would be no logical reason, therefore, for applying one standard to a requested alteration of the parenting time schedule in one situation, and an altogether different standard in the other.

Example 1. Under their custody order, Grace has sole physical custody and Will has visitation rights. The order provides that Will is to have the children on weekends and Grace is to have them during the week. Will’s employer changes his work schedule to require him to work weekends. Will therefore brings a motion asking the court to substitute some other days in place of his weekends with the children.

Example 2. Same as Example 1, except that Will and Grace are joint physical custodians.

Under the facts in Example 1, Will should be allowed to proceed with his motion to modify the schedule. Visitation time is presumed to be in children’s best interests; the change in work schedules prevents it; so the only logical thing to do is change the visitation schedule to non-weekend days.

Under the facts in Example 2, though, a court might be required to dismiss the same motion if the state has a statute prohibiting custody orders from being modified in the absence of a showing of something extreme like endangerment.

Legislation could prevent this anomaly by making the parenting time schedule provisions of a joint custody order modifiable upon a “best interest” showing rather than the more onerous “endangerment” standard.

If this approach is taken, then some thought should be given to whether this will give courts the power to reduce a joint physical custody arrangement to one that is little different from a sole physical custody order, in terms of the amount of time each parent receives. Should a joint custodian be permitted to reduce the other joint custodian’s time from 50% to 14% merely on the basis of an argument that doing so would be in the child’s best interest? If so, then it would be possible for one parent to effectively reduce the other parent to the traditional “visitor” status (14-percenter) without having to meet either the appropriate standard for rebutting the presumption of joint physical custody or the standard for modification of custody.

One way to resolve this dilemma would be to require the application of the more onerous standard for modification of custody in those cases where a parent seeks either the elimination or a substantial reduction of the other parent’s time. The lower-threshold “best interest” standard could be reserved for cases in which only minor changes to the schedule are sought.

If this approach is taken, then to avoid uncertainty it might be a good idea to specify some objective measure for determining when a change is substantial enough to require application of the custody modification standard. One way to do this might be to specify a maximum percentage of change in parenting time that may be sought before the custody modification standard kicks in.

Another change to modification statutes that should be considered if presumptive joint custody is enacted has to do with the grounds for modification. Specifically, it might be desirable to add to the list of grounds for modification of custody the fact that something which previously militated against an award of joint custody no longer stands in the way of an award of joint custody. Under many existing statutes, a showing of endangerment or impairment of a child’s physical or emotional health has to be made in order to get a change of custody. A showing that a party is no longer a danger to a child would not be a sufficient basis for a modification of a custody order under a statute worded in this way. For example, if a mother can show that she has successfully rehabilitated herself from an addiction to Vicodin, then it should be possible for her to ask the court to modify a previous order that granted sole custody to the father on that basis so that it restores both parents to the status of joint custodians.

In short, the modification statute should specify a standard for modifications from sole to joint custody, not merely for modifications from one sole custodian to a different sole custodian.

Coordination with other laws

A state legislature considering a joint custody presumption should review the wording of its child support and public assistance statutes to ensure there are no unintended consequences. For example, in many states, statutes relating to child support enforcement speak in terms of enforcement on behalf of “custodial” parents, or the obligations of “noncustodial” parents. This could have unintended consequences not only in terms of the ability of a joint custodian to enforce child support rights, but also in terms of the ability of a joint custodian to avail himself of certain programs and defenses that a statute only makes available to a “noncustodial” parent.

Some public assistance programs limit eligibility to persons with whom the child primarily resides. Determining primary residence may be difficult if both parents are awarded physical custody. To ensure that joint custodians are not denied public assistance benefits for which sole custodians are eligible, it may be desirable to require joint custody orders to designate one or both of the parties’ homes as the child’s primary residence. Alternatively, a legislature may wish to review the wording of its public assistance eligibility statutes.

Applicability to existing orders

If legislation establishing presumptive joint custody is enacted, a question naturally arises about the effect it will have on existing orders that were issued without the benefit of the presumption. Accordingly, a legislature will want to consider whether, and under what circumstances, the change in the law should be treated as grounds for modification of an existing custody order.

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  1. See, e.g., MINN. STAT. §§ 518.175, 518.176 (2012); Abu-Dalbouh v. Abu-Dalbouh, 547 N.W.2d 700 (Minn. Ct. App. 1996) (imposing restrictions on visitation based on risk of abduction); cf. Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10 (Minn. Ct. App. 1992) (requiring proof of strong probability of abduction if the risk of abduction is the basis for a restriction on visitation.)
  2. See J.S. Wallerstein & S. Blakeslee, SECOND CHANCES: MEN, WOMEN, AND CHILDREN A DECADE AFTER DIVORCE (1989); R.D. Felner & L. Terre, Child custody dispositions and children’s adaptation following divorce, in PSYCHOLOGY AND CHILD CUSTODY DETERMINATIONS 106-53 (L. A. Weithorn ed., 1987)

Why the Custody “Label” Matters

(Scene from "I Am a Fugitive from a Chain Gang," Warner Bros., 1932)

(Scene from “I Am a Fugitive from a Chain Gang,” Warner Bros., 1932)

Before closing down the custody litigation side of my practice, I had opportunities on several occasions to hear judges attempt to explain why it is necessary, after a divorce, for one parent to be designated the “custodian” while the other parent must be demoted to the status of a “visitor.” Of course, none of their explanations made any sense.

To deflect resistance on the part of some parents to being relegated to visitor status, one judge I knew asserted that there is no qualitative difference between physical custody and visitation; that “custody” is merely a label. During pretrial conferences in chambers, if I was representing the father, this judge would turn to me and say, “So your client is all hung up over a label, huh? He’s going to waste his children’s college education fund fighting over a label.” I never heard this judge pose the same question to a mother who was fighting for the “mere label” of custody.

I remember turning to this judge once and asking, “Well, if it’s just a label, then why can’t the mother just throw my client a bone and agree to share the ‘label’?”

I never got an answer to my question. Why? Because he knew very well that custody is more than a mere label. It is true that the rights of noncustodial parents are stronger now than they were in the twentieth century. The increased legal protection for the rights of noncustodial parents has not obliterated the distinction between custody and visitation altogether, however.

Why the custody “label” still matters

 Child support

Historically, only a physical custodian of a child had a right to receive child support. The right was contingent on the label; it was not based on the amount of time a child spent with a parent. Even if a court order granted both parents exactly equal amounts of time, only the parent with the custody “label” could claim a right to receive child support payments from the other parent

This was due, in part, to the way child support laws were worded. They usually specified how much money a “noncustodial” parent must pay to a “custodial” parent. From a historical point of view, this made sense, conceptually at least. Visitation was merely a right to spend some time with a child. A custodian, however, had the responsibility for the care of the child (providing a home, clothing, food, etc.)

It is sometimes asserted that the law did not really treat custodial and noncustodial parents differently; that each had the same support obligation, but custodial parents were permitted to discharge their obligation by providing direct support. On closer analysis, however, the equivalency argument does not hold water. A custodial parent is only required to provide a minimum level of care necessary for the child’s survival, i.e., sufficient level of care to avoid a charge of criminal child neglect. A noncustodial parent must provide more than a minimal amount of care. In most states, the amount of care the noncustodial parent must provide is keyed to the amount of his income: the more income he earns, or has the ability to earn, the more care he is legally obligated to provide, even if it is far in excess of what is needed to meet the child’s needs – that is to say, even if it is far more than what is needed to avoid a charge of criminal child neglect.1 If he is unable or unwilling to provide that level of care, then the state may garnish his wages, suspend his drivers license, suspend his professional license, seize his assets, deny him a passport, and send him to jail. None of these things can be done to a custodial parent solely on the basis of failure to spend more money on a child than what is required to meet the child’s basic needs.

In Kammueller v. Kammueller2 the Minnesota Court of Appeals had occasion to consider whether the system of classification in which a parent with more than 50% of the parenting time is prohibited from seeking child support from the other parent solely because a court has labelled him “noncustodial” violates the Equal Protection clause. The Court held it did not. Why? Because a custodian has a legal duty to provide direct care for a child; a noncustodial parent with visitation does not.

Some states, like Minnesota, have abrogated the rule that only custodial parents may have a right to receive child support from the other parent. This is still the law, however, in others.

Modification standards

It is generally more difficult to modify custody rights than visitation rights. Modification of custody may require proof of something extraordinary, such as endangerment, impairment of health or emotional development, or proof that a child has been integrated into the noncustodial parent’s home with the custodial parent’s consent. Modification of visitation, on the other hand, usually only requires a showing that a desired change is in the child’s best interests.

Some states have begun to impose the higher standard on motions to make significant modifications to a visitation schedule, too. Nevertheless, the fact remains that any modification of the custody “label” is deemed “significant,” while only certain kinds of modifications of visitation rights are considered significant. This, in itself, suggests that there is something inherently significant about possessing the custody “label.”

“The final say”

A grant of joint legal custody is supposed to mean that the parties are to make decisions jointly. In several states, however, courts will give a parent with sole physical custody “the final say” in those cases where the parties are unable to reach an agreement on a decision. This may not be the case in every state anymore, but there are places where it is still either the law of the state or a custom of local courts.

Tax benefits

Federal and state income tax laws generally give the custodial parent, not the noncustodial parent, the right to head of household filing status, and to claim the child as a dependent, the child tax credit, the exclusion for dependent care benefits, the earned income tax credit, and the child-care credit. This may be true even if the noncustodial parent pays all of the child-care costs. A noncustodial parent may claim a dependency exemption for a child if the custodial parent signs a tax form giving her consent to the noncustodial parent to do so. Unless a court orders this to be done, however, a custodial parent is under no legal obligation to sign such a consent form.

International abductions

The Hague Convention gives custodial parents a right to the return of children who have been abducted to a foreign country, and provides remedies for the enforcement of that right. It does not give a noncustodial parent a right to the return of children whom the custodial parent has abducted to a foreign country.3

Criminal penalties

At one time, only a noncustodial parent’s interference with the custodial parent’s rights was a crime. In the late twentieth century, most states made interference with visitation rights a crime, too. Nearly every state made a distinction, however, in terms of the severity of the offense. Interference with custody rights was classified as a felony while interference with visitation rights was classified as only a misdemeanor.

Many states have been moving toward treating interference with visitation rights as a crime of the same severity level as interference with custody. Nevertheless, because there are still some states and foreign countries that continue to treat interference with visitation rights as a non-felony-level offense, the distinction can be very important in terms of interstate and international enforcement.

Tort recoveries

Physical custody includes the right to a child’s services as well as companionship; visitation only provides a limited right of companionship. For this reason, some states allow recovery of damages for tortious interference with custodial rights but not for tortious interference with visitation rights.4

School enrollment

Some states requires that either the custodial parent or the child “reside” (as distinguished from “visit people”) within the school district.

Authority to pick a child up from a school or child-care facility

State and municipal laws and regulations vary widely on the point, but a law or regulation in a particular jurisdiction may specify that only a parent with physical custody is permitted to pick up a child from a school or a child-care facility. In these jurisdictions, a noncustodial parent may do so only if the custodial parent expressly consents to it.5

Public assistance

Some public assistance programs limit eligibility to custodial parents only, or they increase the level of benefits in proportion to the number of children who “reside” in a parent’s home.

Miscellaneous

These are just some examples. There are other rights, benefits and privileges that laws, regulations and contracts (public or private) afford to custodial parents that are not granted to noncustodial parents. In Minnesota, for example, there are Minn. Stat. §§ 62A.046 (2012) (authorizing payment of dependent health care benefits to the custodial parent, but not to the noncustodial parent); 119A.37 (2012) (requiring the creation of standards for the protection of the safety of custodial parents, but not for the safety of noncustodial parents, during parenting time exchanges, and authorizing parenting time centers to offer classes and support groups to custodial parents, but not to noncustodial parents); 168.021 (2012) (authorizing only the custodial parent of a disabled child to obtain, display and use handicap license plates); 349A.08 (authorizing payment of minor child’s lottery winnings to a custodial parent, but not to a noncustodial parent.) This is not, by any means, an exhaustive list.

The most important reason

As significant as all these things are, the most important difference between the custody and visitor “label” has to do with something much more intangible, the legal status and dignity of the person to whom the “mere label” is affixed.

A pragmatist who has no experience with being treated as a second-class citizen might find it difficult to understand why a legal status can seem so important to some people. An analogy to the civil rights area might help clarify.

Suppose, instead of the Fourteenth and Fifteenth Amendments, Congress had simply enacted laws giving slaves a right to be paid the same wages they would be paid if they had the label “employee” rather than “slave.” Suppose, in addition, that Congress had enacted a law to the effect that henceforth every slave who can establish that his or her vote will be in the best interest of the country shall enjoy a privilege to vote in elections. Shouldn’t this be just as good as giving all slaves the label of “citizen”?

What do you think?

The need for reform

By showing that the custody “label” does matter, it is not my intention to encourage people to fight for custody. As I indicated at the beginning, I no longer participate in custody litigation. There is a reason for that. In the civil rights analogy, it would be tantamount to helping slaves fight each other to prove whose vote is in the best interest of the country. The needed fight is not one pitting parent against parent; it is one for the restoration of rights to all parents.

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  1. See, e.g., McNulty v. McMulty, 495 N.W.2d 471 (Minn. Ct. App. 1993).
  2. 672 N.W.2d 594, 600 (Minn. Ct. App. 2003)
  3. Compare Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, 99 U.S.T. 11 (codified as 42 U.S.C. §§ 11601-11610 (2011) art. 12 and art. 21; see also Gonzalez v. Gutierrez, 311 F.3d 942, 945 (9th Cir. 2002); cf. Abbott v. Abbott, 560 U.S. ___, 130 S. Ct. 1983 (2010) (holding that a parent who, though nominally designated the noncustodial parent, is expressly granted ne exeat rights (i.e., the right to veto the other parent’s decision to move the child to a foreign country) in a custody order has “custody” rights for purposes of the Hague Convention, and therefore can invoke the right to return of a child who was taken to a foreign country over his objection.)
  4. See, e.g., Cosner v. Ridinger, 882 P.2d 1243 (Wyo. 1994); compare Spencer v. Terebelo, 373 So. 2d 200 (La. Ct. App.), writ refused, 376 So. 2d 960 (La. 1979) and Owens v. Owens, 471 So. 2d 920 (La. Ct. App. 1985)
  5. See, e.g., Office of the General Counsel, Los Angeles Unified School District, Help Manual III.A.3 (2003); Child Care Law Center, Child Care and Family Law: Child Custody and Releasing Children From Care 3 (2012) (asserting that “only a parent with physical custody at the time of the pickup can make decisions about picking the child up from care.”)

Presumptive joint custody

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“Presumptive joint custody” refers to the idea that parents should share custody of their children unless some good reason is shown to exist, in a particular case, for only one parent to have custody.

In popular usage, the term is often used interchangeably with “shared parenting.” They do not really mean the same thing, though. Shared parenting refers to a paradigm in which both parents have the right and responsibility to participate in parenting. Like presumptive joint custody, it rejects the former paradigm of assigning all parenting rights and responsibilities to one parent, while granting only visitation privileges to the other. It says nothing about the legal status of each parent, though. States that have enacted shared parenting legislation typically provide for changing the terminology used in custody orders from “custodial” and “noncustodial” to “the parent with residential responsibility” at a given time  and “the parent without residential responsibility” at a given time. Almost invariably, though, the statute will specify that it is still necessary to designate a custodial parent in the order, if only for the purposes of enforcing the order in other states. The legislation is usually silent about whether the designation of custody that is made “solely for enforcement” should be sole or joint.

What a presumption is

A presumption  is a  rule of  law according to which a finding of one fact gives rise to a finding of another fact.

Presumptions are either rebuttable or conclusive. A rebuttable presumption is one that  may be rebutted by introducing evidence to show that the presumed fact should not be inferred in a particular case. A conclusive presumption is one that requires the presumed fact to be taken as true in every case.

Almost all legal presumptions are rebuttable, not conclusive.

What “joint custody” is

Joint refers to something that is shared by two or more people. In the custody law context, it refers to sharing the right to the care and control of a child.

Custody has two different meanings pertinent to family law. It can refer to the right to make major decisions concerning a child, or the right to the physical care and control of a child. Decision-making authority is sometimes called legal custody. The right to the physical care and control of a child is sometimes called physical custody.

A number of states have already enacted a presumption in favor of joint legal custody. Very few have enacted a presumption in favor of joint physical custody. Since the subject of this blog is the future of custody law, the focus here will be on proposals to establish joint physical custody as the presumptively correct outcome in custody contests between parents.

What is the “presumed fact” in presumptive joint custody?

All states provide for deciding custody of a child on the basis of what is in the best interest of the child. Therefore, custody-related presumptions usually relate to what is in children’s best interests. Many states, for example, have established a presumption that an award of custody to a parent who has perpetrated domestic abuse against the other parent and/or the child is not in the best interest of the child.

In most proposals for presumptive joint custody, the presumed fact is that joint custody is in the best interests of children.

Assuming it is a rebuttable presumption, then, it could be overcome by introducing evidence to show that joint custody is not in a child’s best interest in a particular case.

Best interest” vs. constitutional rights

Child-custody-related presumptions, and proposals for them, tend to identify the presumed fact as being that some specified custody arrangement is in children’s best interest. The primary caretaker presumption asserted that placement in the custody of a child’s primary caretaker is in the best interests of the child. The ALI’s approximation rule holds that continuing the same percentages of parenting time as the parents exercised before their divorce is in children’s best interest. It is tempting, therefore, to follow the same approach when trying to establish joint custody as the normative outcome in custody cases. In custody contests between parents, though, there is another consideration that comes into play: the constitutional rights of the parents.

As has been covered in previous blog posts, parents have a fundamental right to the care, custody and companionship of their children. Parents also have rights under the Equal Protection clause of the Fourteenth Amendment. In an intact marriage, parents have joint custody of their children, so why shouldn’t divorced or never-married parents? Moreover, since parental rights are fundamental rights, a grant of joint custody to divorcing parents should be considered1 constitutionally mandated unless the state can show some compelling reason for treating divorced parents differently from married parents in this respect.

Unlike other custody-related presumptions, presumptive joint custody has a constitutional dimension that arguably should not be rebuttable merely by proving that it is not in a child’s best interest in a particular case. At least, it should not be possible to do that with any greater ease than removing children from one or the other parent’s care during an intact marriage should be.

Presumptive joint custody gives legal effect to the truism that the dissolution of the relationship between two parents does not dissolve the relationship between either parent and their children. Properly understood, it says nothing about what is best for children. An army of social scientists could concur that only maternal custody is essential for healthy child development, but that does not change the fact that the dissolution of a marriage does not dissolve the relationship between each parent and his or her children.

The curative function of presumptive joint custody

How a preference for sole custody is built into statutory “best interest” lists

Statutory lists of “best interest” factors direct courts to engage in a process of evaluating and ranking the parties to a custody dispute on a number of different attributes (health; stability; level of attachment; etc.) This presupposes that one or the other parent must be determined to be the one who is the most suitable to have the custody of the parties’ children.

In the absence of any other guidance or direction as to what it is supposed to do with a list of “best interest” factors that relate to the qualifications and abilities of the parties as parents, a court must assume that its job is to rate each party on each of the factors, compare each party’s total score with the other party’s score, and then declare the higher-scoring party the winner. Although not explicitly mandating sole custody awards, the structure of such statutes clearly contemplates an award of custody to one or the other party, i.e., sole custody.

Some states have tried to rectify this implicit preference for sole custody by enacting legislation asserting that there is no presumption or preference either for or against joint custody. If the basic structure and wording of the “best interests” statute is left intact, though, then such enactments are really only meaningless verbiage, in practice. In the absence of a fundamental revision of the “best interests” statute, the insertion of such language enables and invites the following kind of judicial thinking process:

 Example. Parent A scores higher than Parent B on the ‘best interest’ factors that I choose to treat as the most important ones in this case. Parent B scores higher on the others. Therefore, Parent A should be awarded custody. But the statute says I am not supposed to disfavor joint custody, so I will now proceed to consider whether the parties in this case are cooperative enough, and whether there are other facts in this case that would support an award of joint custody. If not, then I will award sole custody to Parent A. Even if the parties are cooperative and all the necessary facts to establish that joint custody is feasible are present, though, I will nevertheless need to take note of the legislature’s directive that I am not to favor joint custody, either. Therefore, I may or may not award it, depending, in part, on how I am feeling today, in part on my preconceived notions about the appropriate sex roles for men and women, and in part on whether I personally like, or have more sympathy for, the mother or the father in this case.

Presumptive joint custody proposals attempt to prevent this reasoning process from occurring, so that ongoing deprivations of fundamental parental rights are not made arbitrarily and capriciously.

What a constitutionally compliant joint custody presumption should look like

Properly drafted presumptive joint custody legislation would require a court to make an initial determination whether a compelling state interest would be served by divesting one or the other parent of the kind of custody of his or her children that he or she would enjoy if he or she were in an intact marriage.

The state has a compelling interest in protecting children from harm. Very few statutory “best interest” factors are related to that compelling interest, though. Take the “primary caretaker” factor, for example. The fact that one parent has been the child’s primary caretaker might possibly furnish a reason for allocating more time to that parent, but it would not furnish a reason for divesting the secondary caretaker of physical custody of the child. Accordingly, the “presumed fact” in a joint custody presumption should not be that joint custody is in a child’s best interest, but that a joint custody order is appropriate in all cases, unless a showing is made that it would be harmful to a child in a particular case.

Instead of saying, “Joint custody shall be presumed to be in the best interest of the child,” a parental joint custody presumption should say, “The court shall order joint custody unless it is shown that doing so would be harmful to the child.”

Statutory “best interest” factors were implemented to provide courts with a gender-neutral basis for selecting a custody winner, after the maternal preference doctrine was abolished. As a result, they are not the same considerations that are relevant to the question whether a parent should be divested of the right to share custody of his or her children with the other parent.

Conclusion

With respect to contests between parents, a presumption in favor of joint custody of children should not be phrased in terms of what is in a child’s best interests, where the determination of what is in a child’s best interest is governed by a list of factors that was developed at a time when sole custody was assumed to be in children’s best interest. Instead, it should provide that a parent is presumed to be entitled to the continued custody of his or her children, the presumption being rebuttable upon proof that the parent poses a specific danger of harm to the child. In custody disputes between non-parents, where fundamental constitutional rights are not involved, a rebuttable presumption that joint custody is in children’s best interests may or may not be appropriate, depending on which theory of child development a majority of legislators favors.

 

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  1. I say “should be considered” instead of “is” here only because courts do not always apply constitutional principles consistently.

Defining terms: What does equal custody mean?

Equal_sign

Equality, I spoke the word as if a wedding vow,
But I was so much older then; I’m younger than that now.

–Bob Dylan (“My Back Pages”)

 

Debates about custody law reform typically are framed as disagreements about whether the law should serve the goal of parents’ rights, on one hand, or the best interests of children, on the other. Parents’ rights advocates vie for recognition of the right to be treated as equals under the law. Opponents contend the law should ignore what parents want, and focus instead on children’s interests and what best serves them, apparently assuming that recognizing parental rights does not.

Of course, this is a false dichotomy. It is entirely possible that it could be in children’s best interests for society to give recognition to parental rights. I have made that argument elsewhere.1 The belief that there is some inherent conflict between children’s interests and parents’ rights stems from a misunderstanding of what a “right” is.

There are a lot of misunderstandings about what “equality” means, too. A first step in any movement either toward or away from equality, therefore, should be to define the term. If it means different things, then the first step in any discussion about it should be to identify which meaning of the term is being employed in the discussion.

The multiple meanings of equality

According to Webster’s, “equal” can mean four different things:

(1) equivalency of quantity, quality, etc.;
(2) regarding or affecting all things in the same way, meaning that the things have the same status with respect to how they are regarded or affected; e.g., equal opportunity;
(3) free from extremes; tranquil; or
(4) capable of meeting the requirements of a task.

Only the first two definitions are pertinent to discussions of custody law.

The first step in any discussion of equality in the context of custody law reform, then, must be to clarify which meaning of the term is being used: equivalency of quantity, quality, etc., or being regarded by the law as having the same status.

Equivalency vs. equal opportunity in the custody context

As applied in the context of custody law, the dual meanings of equality would be:

(1) Equality of the quantity and quality of custody each parent possesses;
(2) Equality of status with respect to the right to possess and enforce custody rights (entailing a right not to be subjected to discrimination on the basis of sex.)

Put more simply, the difference is between equal time and decision-making power, on one hand, and an equal right to ask a court for (and to have a court make an award of) sole custody, on the other.

If breath were helium, then the quantity of breath that has been expended in debates over “equal” custody that have gotten nowhere because the participants were not talking about the same thing would be adequate to power a fleet of zeppelins for many centuries.

Legal vs. physical custody

In discussions about “equal custody,” it is also important to be clear about which meaning of the second half of the phrase is intended. Custody can mean two different things in family law. It can mean the legal authority to make major decisions about a child’s upbringing (sometimes called “legal custody,” or “decision-making responsibility”); or it can mean physical possession of a child (sometimes called “physical custody” or “residential responsibility.”)

Unfortunately, terminology is not consistent across states. Depending on the state, the word custody, standing alone, may refer only to legal custody; or it may refer only to physical custody; or it may refer to both legal and physical custody. If the Commission on Uniform State Laws were to issue a new uniform law on custody standards, a clear definition of the term would be a good thing to consider including in it.

Different meanings of “equal legal custody”

Given the two different meanings of equal, it should be obvious that the phrase equal legal custody is susceptible to two fundamentally different interpretations. It could mean giving each parent an equal amount of decision-making authority, or it could mean giving each parent an equal right to ask a court for an award of sole decision-making authority.

Equal opportunity, in the context of legal custody, would mean the equal right of fathers and mothers to earn decision-making rights, regardless of their sex. The decision-making rights so earned, however, could differ greatly in terms of quality or quantity from those earned by the other parent. So long as it is not based on sex, a parent could legitimately be awarded sole legal custody under an equal-opportunity model without violating anyone’s rights. An equivalency model, by contrast, would favor a joint legal custody outcome.

Although some people use the phrase joint legal custody in the equal-opportunity sense (arguing, for example, that it means courts should not discriminate against fathers in custody cases), I suspect most people who use it intend the equivalency sense.

Assuming it is being used in the equivalency sense, it then becomes necessary to define what equivalency means in the context of legal custody. Does the desired equality relate to the quantity of decision-making authority, or to the quality of it? Will a law giving each parent “equal legal custody” mean that each parent is entitled to make as many child-rearing decisions as the other parent does, or will it mean that the parents are to make decisions jointly with neither one having a superior right to “make the call” in cases where they are not in agreement?

Different meanings of “equal physical custody”

Similar considerations apply to the phrase equal physical custody.

To begin with, it could mean equivalency of the amount or quality of custody each parent has. Alternatively, it could refer to an equal status under the law, which, in turn, would connote equal opportunity under the law, not necessarily saying anything about amounts or quality of time.

Equality of status, in the context of physical custody, would mean the equal right of fathers and mothers to earn rights to physical possession of children, and to have courts decide the issue without discriminating on the basis of sex. The amount or quality of the time so earned, however, could differ greatly between the parents. Under an equal-opportunity model, a court could legitimately award sole physical custody to one parent alone,  so long as it did not do so on the basis of sex. Such an award would be an equal rights violation only if the term equal is being used in the equivalency sense, not the equal-status/opportunity sense.

Most states that have adopted equality-oriented legislation in the context of physical custody have adopted the equality-of-status model rather than an equivalency model. For example, the Minnesota legislature, in Minn. Stat. § 518.003 (2014) has defined “joint physical custody” to mean only that “the routine daily care and control and the residence of the child is structured between the parties.” Nothing is specified about the amount of time each parent has with the child, much less about whether it must be equal or not. Minnesota has also enacted a statute, Minn. Stat. § 518.17 (2014) prohibiting courts from deciding custody solely on the basis of sex. These statutes clearly adopt the equality-of-status concept of equality, falling short of addressing equivalency with respect to quantity or quality.

In discussions about whether a right to equality in the equivalency sense should be made a part of the law of physical custody, then, the first issue that should be addressed is what equivalency means in the context of physical custody. Does the desired equality relate to the quantity of time each parent gets, or to the quality of the physical custody each parent gets?

Note that the definition the Minnesota legislature has provided identifies two distinct aspects of physical custody: (1) residence; and (2) “routine daily care and control.” The first part is fairly straightforward, but what does “routine daily care and control” mean? Remembering that legal custody means the right to make major decisions about child-rearing, “routine daily care and control” logically must be referring to a right to make minor child-rearing decisions. Examples might include such things as what the child will be served for breakfast, lunch and dinner; what style of clothing will be selected for the child; whether the child will be required to brush his teeth before going to bed; and so on.

Even when the equivalency sense of equality is intended, then, equal physical custody can mean different things. It can mean equal time; or it can mean equality of decision-making authority (or status) with respect to ordinary, every-day child-rearing decisions, during the time a child spends with the custodian; or it can mean both.

Those with an interest in moving custody law toward “equal physical custody” in the equivalency sense will need to consider whether it is to mean that each parent is entitled to spend as much time with the child as the other parent does, or whether it is to mean that neither parent has a superior right to make ordinary, everyday child-rearing decisions even while the child is in the other parent’s care. Or will it mean both things?

Why all this boring junk about definitions matters

It’s a fair question. The best answer is that being clear about definitions can help people avoid wasting a lot of time in pointless, unproductive debates.

As helpful as defining terms is in debates, it is absolutely critical when drafting legislation. Failing to be clear about the meanings of the terms used can have unintended consequences. In some cases it may lead to disastrous judicial interpretations.

Take the phrase equal physical custody. A court that is hostile to the idea of making an award of an equal amount of time to each parent could construe this term narrowly to refer merely to equal status as physical custodians. Under this interpretation, each parent would have the equal right to be called a physical custodian (as distinguished from a “visitor,” for example.) Each parent would also have an equal right to make his or her own decisions about the ordinary, everyday care of children while they are in his or her care without being required to take directions from the other parent. The court could then go on to hold that these things signify nothing about the amount of time each parent is entitled to spend with the children. If equality with respect to quantity of time is the desired outcome, then that should be made very clear in the draft legislation.

Conversely, law reform proposals that define physical custody solely in quantitative terms, or that are focused exclusively on ensuring that courts award “equal time” to both parents, run the risk of being construed as authorizing, or even encouraging, unequal awards of physical custodial status. Laws in some states require or encourage courts to strive for “substantial” or even “substantially equal” amounts of time for both parents. Courts in these states have not construed such requirements as necessitating awards of joint physical custody. A court can comply with a requirement of this kind by granting one parent sole physical custody, and then granting the other parent a “substantial” amount of visitation.

In a related vein, merely changing the statutory definition of “joint physical custody” to mean an equal division of time will not necessarily ensure that a court that orders a substantially equal division of time will be obliged to call the arrangement joint physical custody. It is not unusual for a court to name one parent the sole physical custodian while at the same time awarding 40%, 50%, or even a majority of the time to the noncustodial “visitor” parent.

It is always tempting to try changing an existing statutory definition of a term to get it to do more work than it currently does. For example, calls are often made to change a state’s definition of “joint physical custody” to make it mean an “equal or substantially equal division of time.” This may seem like a good way to prevent judges from nominally awarding “joint physical custody” to both parents while still only awarding 14% of the time to the father. Redefining joint physical custody in purely quantitative terms, however, can have some serious unexpected consequences.

To begin with, redefining physical custody in purely quantitative terms implies that the qualitative aspects of the former definition are no longer applicable. If, for example, Minnesota’s statutory definition of joint physical custody were changed to say “an equal or substantially equal amount of time,” a court could reasonable construe the amendment to express a legislative intention that a joint physical custodian is no longer to have the authority to make ordinary, everyday decisions about child-rearing while the children are in his or her care. A court could reasonably infer a legislative intent to require joint physicians to confer with each other about everything, even to the extent of requiring the parents to meet and confer with each other about the brand of toothpaste their children should use. Evidence that the parents are not willing or able to go to that extreme could then necessitate a finding that the presumption in favor of joint physical custody is rebutted and the court should therefore award sole physical custody to one or the other parent.

Another unintended consequence of defining joint physical custody to mean equal time is that courts would then have to deny joint physical custody to parents in those cases where an exactly equal division of time is not feasible. This could happen, for example, when the parties live so far away from each other that their children would have to enroll in two different schools in order for each parent to get an exactly equal amount of time with them. It could also happen in situations where the parents do not desire an exactly equal division of time, whether due to work schedules or for some other reason.

If a statute defines joint physical custody to mean an equal division of time, but an equal division is not feasible, then a court would need to either issue an unworkable order with which the parties cannot comply, or order sole custody instead. In most cases, the latter option would probably be the one selected.

A statutory definition of joint physical custody as an equal division of time would also significantly limit a court’s power to order joint physical custody when parents wish to share joint physical custody but do not want an exactly equal division of time. For example, if John and Jane Doe amicably agree to joint physical custody, agreeing that John will have the children for 4,382 hours of the year, while Jane will have them for 4,384 hours of the year, then a judge complying with the statutory definition would be required to name one of them a sole custodian instead of awarding the couple joint physical custody.

Rather than re-defining joint physical custody in purely quantitative terms (a la “equal or substantially equal time”), the better approach (assuming equal status and substantially equal time are the goals) would be to retain a qualitative component in the definition; or, if a statute does not already contain a qualitative component, then to add one.

Another option would be to adopt (or retain, as the case may be) an equality-of-status type of definition of joint physical custody or shared residential responsibility, while addressing the question of quantity of time separately.

This could be accomplished in Minnesota, for example, by retaining the existing definition of joint physical custody, while addressing in a different provision the amount of time each parent should be awarded.

Conclusion

Laws and law reform proposals having equality in custody proceedings as their objective should make clear whether the equality sought is equality of status (equal opportunity; freedom from discrimination); equivalence of quantity and/or quality (equal time, equal decision-making power); or both.

When equality in the equivalence sense is the objective, further care should be taken to specify the intended object of equivalence. Is the intent to talk about equivalence with respect to the quantity of time a parent spends with children, or equivalence with respect to quality, such as equal authority to make decisions about upbringing? If it is about equal decision-making authority, does it involve all decisions or only major ones, and does the equivalency relate to the quantity of decisions or to the quality of the authority?

Carelessly drafted legislation can have serious unintended consequences. Therefore, it is imperative to think very carefully about even the most basic things, like what the words equal and custody mean.

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  1. Tom James, Parent, child and state: Choice and interest theories revisited (2013), available at https://www.academia.edu/10132229/Parent_Child_and_State_Choice_and_Interest_Theories_Revisited