Tuesday, June 10, 2014

Misunderstandings about Mandates versus Presumptions, Again

The Ordway Law Group of Atlanta recently posted a blog entry entitled, "Georgia child custody still based on best interest of the child." They write (emphasis mine):

Throughout the country, including in Georgia, there are groups that are lobbying state legislatures for passage of laws that will make it mandatory for shared custody or joint custody arrangements to be ordered by the courts. 

A technical glitch with their blog prevented comments from being accepted to be posted. I emailed my post in but didn't get a reply. Unfortunately my original response was lost, but I basically said this:

You write that "there are groups that are lobbying state legislatures for passage of laws that will make it mandatory for shared custody or joint custody arrangements to be ordered by the courts."  
I study these issues and know of no such group that is seeking that shared or joint custody be mandatory or required. Who would argue that, irrespective of any circumstances, some custody arrangement be mandatory, that a judge must order that custody arrangement (irrespective of the judge's judgment about the case)?? Nobody. If you can point to any people or groups who actually seek this, please let me know, since I believe there are no such people or organizations.  
Rather, people and organizations seek a shared parenting presumption, which is entirely different from a 'mandate.'  They argue that equality -- that is, equal physical and legal custody -- should be the standard or starting point: the ‘burden of proof’ is on anyone seeking a non-equal custody arrangement.  
I hope that your readers, clients and potential clients will appreciate this correction concerning what advocates for shared or equal parenting actual argue for.  

This is the second instance that I've seen of an attorney claiming that people organizations advocate for a shared parenting mandate, when none of them do. I wonder what's the motivation for this misunderstanding or misrepresentation.

Recommended Readings

Braver, Sanford L. Divorced Dads: Shattering the Myths. New York: Jeremy P. Tarcher/Putnam, 1998. 
Hubin, Donald C. “Daddy Dilemmas: Untangling the Puzzles of Paternity.” The Cornell Journal of Law and Public Policy 13 (2003): 29–80. 
———. “Parental Rights and Due Process.” The Journal of Law and Family Studies 1 (1999): 123.
Kruk, Edward. “Arguments for an Equal Parental Responsibility Presumption in Contested Child Custody.” The American Journal of Family Therapy 40, no. 1 (January 2012): 33–55. doi:10.1080/01926187.2011.575344. 
———. The Equal Parent Presumption: Social Justice in the Legal Determination of Parenting after Divorce, 2013. 
Nielsen, Linda. “Parenting Time & Shared Residential Custody: Ten Common Myths.” The Nebraska Lawyer, February 2013. http://www.osbar.org/_docs/sections/family/FamilyLaw_2013Feb.pdf
———. “Shared Residential Custody: Review of the Research (Part II of II).” American Journal of Family Law 27, no. 2 (Summer 2013): 123–37. 
———. “Shared Residential Custody: Review of the Research (Part I of II).” American Journal of Family Law, 2013. http://lw4sp.org/s/Nielsen_2013_ajfl-published.pdf  
Warshak, Richard A. “Social Science and Parenting Plans for Young Children: A Consensus Report.” Psychology, Public Policy, and Law 20, no. 1 (2014): 46–67. doi:10.1037/law0000005.