The reservations about establishing a presumption that a father and mother should have joint physical custody and parenting responsibilities were somewhat overblown. The fear was that such a presumption would impose a
“one size fits all” custody arrangement that would be harmful to children—such as where there was violence or abuse. Such a fear is based on a misunderstanding of the legal effect of presumptions. There are two kinds of presumptions: irrebuttable or conclusive presumptions (presumptions that cannot be rebutted or overcome by evidence) and rebuttable presumptions (presumptions that can be rebutted or overcome by evidence. The Indiana Law Encyclopedia states that a “presumption of law creates a prima facie case which prevails in the absence of contrary evidence… unless the presumption involved is made conclusive by law, it recedes in the face of evidence to the contrary.”

There would be a legitimate concern about establishing a presumption of joint custody only if the presumption were a conclusive or irrebuttable presumption. This seemed to the the unspoken assumption of those who expressed concern about a presumption of joint custody.

However, if the presumption is rebuttable, what is the problem? If there is evidence or violence, abuse, drug or alcohol problems, or any other circumstances that would make joint and equal custody harmful to the best interests of the children, then the presumption favoring joint custody would yield to the evidence against that kind of custody arrangement.

But as things stand now in most states, there is an unspoken (but very real) “presumption” that the mother should have sole custody and that the father (and his children) are only entitled to some limited “visitation” or “parenting time”. As one of the panel members stated, there is a very good way of determining who will be given custody at the beginning of a custody hearing–custody will be given to the parent who is wearing the skirt. Admittedly, this method of predicting who will be given custody is not completely accurate—it only works about 90 to 95% of the time, and the exceptions require that fathers produce evidence of near extreme unfitness by the mother. Talk about presumptions that lead to “one size fits all” outcomes!!

No, society does not want to endanger children by putting them in joint custody arrangements that are not appropriate. However, why should the majority of situations where joint custody WOULD be appropriate and would pose no significant harm be eliminated by a few situations where they would not be appropriate? Rebuttable presumptions of joint custody (where at least one parent wants joint custody–remember, there are many situations where both parents are content to let either the mother or father have primary custody) provide a workable framework in which both parents can continue to have significant contact and maintain their important and unique roles as mother or father to their children. Situations where joint custody is not appropriate can be weeded out by one of the parents presenting evidence that would rebut the presumption. It is all about the starting point of the courts in deciding how custody and parenting responsibilities are going to be allocated. Should the courts start with the presumption that both parents are competent and loving and should maintain equal roles in the lives of their children until there is evidence to the contrary, or should courts start with the presumption that one parent (generally the mother) should have primary custody until the other parent can present evidence of unfitness?

Another point to consider is that initial custody arrangements are not written in stone. If after a period of time, there is evidence that the children’s best interests are not being served by joint custody, then a court could always modify the arrangement.

By the way, in my particular case I “settled” with my ex wife for an arrangement in which my teenage sons are with me 12 to 13 (sometimes 14) days during the school year and equal time in the summer (which is what the law presumes and provides for all parents in Indiana during the summer months). I settled because I knew that even though I was a good father, there was not a snowball’s chance that the court would order joint and equal custody. That is just the reality of divorce and custody in Indiana and most other states.