Debate fires up over presumption of joint custody

The real change we need to push for is a change so that if one spouse initiates a divorce there is a rebuttable presumption that children remain with the other parent. Unilateral divorce is the real enemy, and a fair custody law like that is the only way to combat it.

http://en.wikipedia.org/wiki/No-fault_divorce#Arguments_Against

While I do agree that no fault divorce is a serious problem, I tend to disagree with your suggestion. Initiating a divorce can be the result of the other spouse cheating. In this case, the person initially violating the marriage contract (by perpetrating adultery) would be rewarded with the children.

I tend to like the idea of equal parenting. It encourages struggling couples to work towards the relationship rather then giving up (or at least making sure they know what they want to do). Relationships take work, and too many people have forgotten that and give up at the drop of a hat, or the slightest onset of boredom. It also means a father can actually have a relationship with their child. There are other benefits.

That's not so. The idea is there would be a rebuttable presumption that children remain with the spouse who did not initiate the divorce -- but the presumption is rebuttable. Let's say (as an example) we determined adultery was sufficient grounds for a divorce with children. If the spouse could prove that (and we really should presume that someone is innocent until proven guilty -- that's an important thing), that would be enough to rebut the presumption. Then you could have some other kind of custody arrangement. But that idea of the presuming the spouse who doesn't want the divorce to be innocent is very important because it discourages all the false accusations we get today. Also a switch to this system would discourage divorce in general -- which would be fantastic for al the kids harmed by divorce today.

I think your giving too much authority to the court. The parents are the parents and there should be a presumption of joint custody unless one parent is trully unfit. You could possibly argue that the parent who initiates divorce for no good reason is harming the child but its just not direct enough, nor does it say the parent won't be good to the kid. That bond shouldn't be broken without good cause.

I got to thinking from a huffpost article about parental abuse and something really struck me there. It mentioned how sometimes the way parental abuse can work is that a parent (former spouse) could have actually been abused but then try to take revenge by using the kids and committing new abuse.

So even though one of the parent did something wrong to the other parent that is no excuse to use kids as leverage. While the spouse may have been abusive they have always been and will always be ok to the kid and the kid should therefore have the right to that bond protected. Of course you have to consider circumstances and be careful.

I think you might be missing the point. This idea gives *less* authority to the court. First, we know divorce is bad for kids most of the time. We *know* it. There are now tons of studies that have tremendous consensus (and why should we be so quick to even want to give custody to parent so quick to inflict divorce on children without sufficient cause -- it's a little like giving custody to a child abuser). Second, in all the arguments against a presumption that children remain with the respondent, someone starts with the assumption that the spouse being left is guilty of something. That's wrong. The idea in justice is to presume innocence and have to prove guilt. Yes, if the spouse being left did something wrong, you can rebut the presumption -- but you need to prove it in court first. You can't just hurl accusations. Also, a marriage contract should resemble other contracts. If you terminate a contract without sufficient cause, you shouldn't benefit from it, and you should try to leave the other parties as unchanged as possible. The idea behind having a rebuttable presumption that children remain with the respondent is that children should *not* be used as pawns. With this presumption in place, parents would only initiate a divorce if they knew they had to do it for their children. They would be more apt to work on their marriage for the sake of their kids. Remember, right now most marriages are ended by women for relatively trivial reasons that have nothing to do with the well-being of the children. This change would correct that problem, much like the right laws against crime can often drop the crime rate.