Joint Legal Custody Presumptions: A Troubling Legal Shortcut

• Date: 01 April 2014
• Author: Hon. Dianna Gould‐Saltman,Nancy Ver Steegh
• DOI: http://doi.org/10.1111/fcre.12089
• Published date: 01 April 2014

JOINT LEGAL CUSTODY PRESUMPTIONS:

A TROUBLING LEGAL SHORTCUT

Nancy Ver Steegh and Hon. Dianna Gould-Saltman

This article examines the legal operation and impact of legal custody presumptions. Wecompare the nature of joint legal and

joint physical custody and explore common misunderstandings about howpresumptions work and their practical repercussions

for children and parents. Weconclude that legal custody presumptions are not suited to the task of promoting quality decision

making and healthy parent–child relationships and they recommend alternative approaches.

Key Points for the Family Court Community:

• The operation and impact of legal custody presumptions are often misunderstood by practitioners.

• The goal of quality decision making on behalf of children is more realistically achieved through other approaches.

Keywords: Burden of Proof;Custody;Joint Legal Custody Presumption;and Legal Custody.

When parents separate, one or both will continue to make decisions involving the health,

education and welfare of their children. Whether and under what circumstances parents should

share decision-making authority has been the subject of debate in both the legal and mental health

communities.

Some states have adopted presumptions regarding joint decision-making authority, commonly

referred to as joint legal custody1presumptions. Proponents of joint legal custody presumptions hope

to benefit children whose parents have separated by promoting continued involvement by both parents

and encouraging parents to “share in the rights and responsibilities of raising their children.”2Some

believe that joint legal custody presumptions provide a transparent starting point for judicial decision-

making3or provide an interim arrangement for newly separated parents.4

The notion of joint legal custody presumptions has widespread popular support but much of the

discourse surrounding them fails to account for their practical legal operation and impact. This

article explores the legal context of joint legal custody presumptions, focusing on their potential

repercussions for children. The authors conclude that there are more realistic and effective ways to

encourage quality decision making and safe and healthy parent–child relationships following

separation.

I. OVERVIEW OF JOINT LEGAL CHILD CUSTODY PRESUMPTIONS

Legal custody involves decision-making about major issues affecting a child, including the child’s

health, education, and religion.5Joint legal custody6means that the parents will confer and make

decisions together, with the result that neither has a final “say”, or the legal ability to override the

other, in the event of a disagreement. In contrast, sole legal custody designates one parent to make

decisions. Consequently although the parents may confer on major decisions, if they do not do so or

they do not agree, the designated parent decides.

Statutory presumptions regarding joint legal custody vary significantly but may be categorized as

presumptions of general application,orpresumptions arising at the request of the parents.For

Correspondence: nancy.versteegh@wmitchell.edu

FAMILY COURT REVIEW, Vol. 52 No. 2, April 2014 263–270

© 2014 Association of Familyand Conciliation Cour ts