The injustice that gave rise to the movement for presumptive joint custody

The Future of Custody Law Reform|Law Blogs|

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 bblog2b-2bscale2bof2bjusticee 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.

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