All Men Are Created Equal: A Proof for the Presumption of Joint Physical Custody

All Men Are Created Equal: A Proof for the Presumption of Joint Physical Custody

The value of legal presumptions. Rebuttable legal presumptions reduce litigation by mandating that certain inferences be drawn from certain facts, thus establishing a prima facie case, which may be overcome only by contrary evidence. Fail to overcome the presumption, fail to prevail. Presumptions are shaped by the principles and policies they are created to serve, so that they provide greater predictability as to the legal question. Sustain the presumption, prevail in the case.

Take, for instance, the presumption of innocence, which we infer from the fact that most people are not criminals. So in a criminal trial the burden of proof lies with the accuser, not upon him who denies; since he who denies a fact cannot prove a negative. John Adams further posited that “if innocence itself is brought to the bar and condemned” then “whether I do good or whether I do evil is immaterial, for innocence itself is no protection,” and the consequence being “the end of security whatsoever.” The presumption of innocence is all but inarguable, particularly given the history of the United States and of the State of Utah. Whether Utah ought to adopt a rebuttable presumption of joint physical custody (of children whose parents divorce) [ii] is as rhetorical a question as whether a criminal defendant ought to be presumed innocent.

Notwithstanding the lack of compelling grounds for a sole custody presumption, sole physical custody is currently Utah’s express statutory presumption[iii], a presumption upheld in Utah’s case law.[iv] The Utah Code rebuttably presumes that a child custody award as provided in Utah Code Section 30-3-33 (2012) and the parent-time schedule as provided in Sections 30-3-35 (2012) and 30-3-35.5 (2012)

shall be presumed to be in the best interests of the child. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded[.][v]

The folly of a sole custody presumption. A presumption of awarding sole custody of children in divorce cases tacitly (or if we give the legislature the benefit of the doubt, inadvertently) posits that one of the parents is unfit (or if not unfit, then “less fit” than the other parent) to exercise custody of his own child. A presumption of sole custody infers that one of the parents—merely through the instrumentality of divorce—becomes (or is prima facie deemed?) unfit or unworthy of his fundamental human, parental right of child custody.

Presuming that fundamental and constitutionally recognized and protected parental rights should not be curtailed without clear and convincing evidence that doing so would serve a compelling state interest is not a foreign concept. For example, in actions for the termination of parental rights Utah applies a “parental presumption”:

[The parental presumption] recognizes “the natural right and authority of the parent to the child’s custody ….”[vi]

Few couples divorce over parental fitness[vii], yet the sole custody presumption erroneously infers that children of divorced parents must have but one physical custodian.[viii] A presumption of joint custody (both joint legal and joint physical custody) is naturally inferred from the fact that most married parents are at least minimally fit parents. If parental fitness itself is condemned or discounted then fitness is immaterial, for fitness itself is no protection to the fit parent or to the child. A presumption of joint custody is a reflection society’s progress in 1) treating the opposite sexes fairly and non-discriminatorily and 2) its regard for the importance of both parents in a child’s upbringing. No parent who is fit and willing should ever have to fight to share equally in the lives of his or her own children.[ix]

Accordingly, the law (and more importantly, those who administer it) must presume that children should remain in the care and custody of both parents and then let the weight of the evidence preponderate toward one parent or the other, if (and only if) the evidence in fact weighs in favor of sole custody.[x]

Responding to the “Quality Time” objection to joint custody. Nothing about the parents’ divorce intrinsically dictates that their children must also divorce a parent, yet a sole custody award is effectively, if not technically, a dissolution of the meaningful parent-child relationship. Cue here the contrarian who responds with, “Children will maintain bonds with parents based upon the quality of parenting time, not quality.” Quality versus quantity is a false dichotomy and a ruse. One who makes the “it’s not the quantity of time, it’s the quality” argument is the one really arguing not for quality but for . . . sole custody. What better quality of time can there be than to ensure a child spends as much of it in the care of two fit, desiring parents? To paraphrase John Rawls, the fairest presumption is that to which both fit parents would agree if they did not know who would end up with sole custody. This is but one of many reasons that a presumption of joint custody is self-evidently equitable.

Responding to the “Cookie Cutter” objection.[xi] Opponents of a joint custody presumption argue it is a “cookie cutter” approach that does not consider or cater to the “unique circumstances” of each particular child of divorce. Nonsense. Do not confuse a presumption with a mandate.[xii] Second, a joint physical custody award is inherently less rigid than is a sole custody award.[xiii] Two parents exercising custody—as opposed to one parent exercising sole custody— double their children’s custody sharing and scheduling options (and the ability to implement those options). The exercise of joint custody fosters the engagement of both parents, rather than reducing one parent to a disengaged meal ticket and weekend visitor.

Responding to the “Ping Pong” objection. While there is no doubt that some children may acutely pine for the other parent when in the custody of the other, this is not a function of a child custody award but of the separation of parents. The notion that joint custody is inherently less “stable” than sole custody depends upon what kind of “stability” one favors.[xiv] First, the most popular joint physical custody plans demonstrably involve as much shuttling as, or less shuttling than, “standard” sole custody plans[xv] (i.e., every other weekend and one evening a week with holidays and parts of summers divided). Second, the ping pong objection shows more concern for preserving children’s physical arrangements than with fostering their relationships with both of their parents. Third, for most children (notice I stated most, not all[xvi]), residing with both fit parents is certainly no worse than sole custody;[xvii] children who spend, at a minimum, four nights per month with the noncustodial parent for most of the year do not suddenly vaporize when they spend long holiday weekends and extended summer vacations at the noncustodial parent’s residence.

Responding to the “Oil and Water” objection. Joint physical custody opponents also claim that joint custody leads to and/or exacerbates inter-parental conflict. Reason, as well as the scientific evidence is to the contrary,[xviii] but if, arguendo, joint custody were responsible for increased inter-parental conflict, the solution would not lie in sole custody. First, sole custody is clearly not a cure for inter-parental conflict. Second, while I will concede that sole custody does reduce a certain amount of inter-parental conflict, it reduces conflict for all the wrong reasons; rather than fostering peace, sole custody (and the power it allows the custodial parent to wield) brooks no opposition. Sole custody awards break the noncustodial parent’s spirit through trampling parental rights and by radically abridging of the parent-child relationship.[xix] If ever there were perfect examples of throwing the proverbial baby out with the bathwater, knee-jerk presumptions (and awards) of sole custody—for the sake of merely stifling conflict—are it. In this author’s opinion, a child custody policy that expects the worst of parents and awards custody based upon expediency reflects poorly on Utah family law.

Responding to the “Primary Caregiver” objection. Children possess a moral right to both parents as stewards of their wellbeing, and the ultimate fraud of the “primary caregiver” doctrine is its violation of that right.[xx] From a societal perspective, the notion that one custodial parent is better than another is offensive and outdated. No custody presumption can be fairer to and better for parents and children than shared parenting after divorce. Shared parenting promotes equality in all aspects of parenting after divorce: fathers are moving from traditionally being the predominant breadwinners to more direct caregiving, thus facilitating mothers’ new role of engaging in the gainful employment they will need for their own support. Children benefit from a substantial reduction in the use of surrogate daycare, and avoid the pitfalls and risks of single parenting.

Both parents’ contributions to the children do not have to be the same in kind or degree to be of equal value for children. In a traditional marriage, the mother’s staying at home with the children better enabled the father to benefit the family financially, hence indirectly contributing to the marital financial gain, and thus by all rights, the mother has an equal right with the father to that financial gain.[xxi] As each hour of the father’s full-time work enabled the mother to care directly for the children one hour more, the father thus contributed to the children’s care and thus has an equal right of child custody.[xxii]

Responding to the “There Should Be No Presumption Either Way” objection. This is the easiest argument to debunk because the question is not whether there is a presumption, but of what the presumption should be. Implicit in seeking the best interest of the child is the question of “What custody award is best for this child?” instead of “Which parent should be awarded custody?” To argue that the “presumption” should be the best interest of the child is erroneous because the best interest of the child is an aspiration, not a fact accepted as true until proven otherwise (as is the case with a rebuttable presumption).[xxiii] There is no overriding state interest that requires limitations on the parental rights of a divorcing spouse merely due to the incident of divorce. Divorce does not presume competing custodial interests. While a complaint for divorce necessarily invites the state’s intervention, such is a limited invitation to remake the family no more than is necessary.


The parental presumption must apply to parents engaged in divorce actions and apply— equally—to both parents. Neither parent should be deprived of any custodial rights unless and until the court finds, by clear and convincing evidence, 1) that a parent is unfit to exercise those rights in conjunction with his/her attendant duties to the children; 2) that a parent is unable or unwilling to exercise those rights and duties jointly; and 3) that joint custody is otherwise rendered impracticable by external circumstances that the parties’ either cannot or will not control.[xxiv]

It is better to leave as much of the parent-child relation intact during and following divorce than to have the state impose a radical and artificial re-structuring of it through a presumptive award of “sole custody.” Leave it to families—even broken families—composed of two fit parents to govern themselves. Subjecting families and children to (and consequently making them dependent upon) judicial fiat to govern the parent-child relationship serves no private or state interest. The upshot of such judicial restraint will be decreased litigation, better family law jurisprudence, and happier families. A key difference (if not the key difference) between presumptive joint custody awards and presumptive sole custody awards is that joint custody sees the glass as half full; sole custody, half empty.

Growing numbers contend that the presumptive child custody award ought, as a matter of constitutional law, if not basic fairness, to be joint physical custody. [xxv] I am among that number for reasons that I submit are manifestly and without exception superior to the arguments of the sole custody presumption camp. A joint physical custody presumption derives far more from and harmonizes with reason and due process of law than does a presumption of sole custody.


i The word “men” in the phrase “All men are created equal” means what it meant in 18th century English, i.e., human beings of both sexes. Still, given the subject matter of this comment, the double entendre is appropriate. Mutato nomine et de te fabula narratur (“Change the name and the story is about you.”). Horace.

ii To understand the joint physical custody presumption correctly is to understand what it is not. It is not the irrevocable mandating of joint physical custody awards in all cases. Nor is it to suggest that “joint custody” be rigidly defined as nothing other than exact equal time-sharing (though a presumption of equality in this regard is hardly inequitable). Although it is not the best definition of joint physical custody, the one articulated in Utah Code § 30-3-10.1(2) (2012) is a pretty good one, and would serve well as a joint physical custody presumption.

iii See Utah Code § 30-3-34(2) (2012).

iv Though not echoed nearly as strongly in the appellate courts as trial courts quoting Pusey v. Pusey and its progeny would attempt to lead one to believe.

v See supra n. 3.

vi Hutchison v. Hutchison, 649 P.2d 38, 40 (Utah 1982) (citing State in re Jennings, 432 P.2d 879, 880 (Utah 1967)). See also Kishpaugh v. Kishpaugh, 745 P.2d 1248, 1251 (Utah 1987).

[T]he parental presumption can be rebutted only by evidence establishing that a particular parent at a particular time generally lacks all three of the characteristics that give rise to the presumption: [i] that no strong mutual bond exists, [ii] that the parent has not demonstrated a willingness to sacrifice his or her own interest and welfare for the child’s, and [iii] that the parent lacks the sympathy for and understanding of the child that is characteristic of parents generally.

One would be hard-pressed to argue why the parental presumption cannot and should not be applied to the child custody award analysis in divorce actions.

vii No-fault divorce is, as the term denotes, no basis for fighting over child custody. Which parent “gets” exclusive custody of a child cannot be at issue when there is no basis for it. There is no reason for the court to “award” children to one parent unless parental unfitness is an issue or some other issue arises that can be resolved only by an award of sole custody.

viii Presumption of sole custody creates a needless adversarial scenario out of what was a joint endeavor (i.e., conceiving and parenting the child), irrespective of the parting of the ways of the spouses, unless the divorce is, inter alia, genuinely over a parent’s mistreatment of the children.

ix Donald Tenn


x How perverse to believe, much less suggest, that children should not be kept close to both parents who are fit, loving, and demonstrate the will to be a supportive parent. The object is not equal time necessarily; the goal is to ensure the courts and the lawyers do not usurp parental rights of parents and children (which rights the state can trust fit parents to exercise wisely by virtue of the facts that 1) the parents are at least minimally fit and 2) the state is rarely more fit than the average divorcing parent).

xi I am grateful to Dr. Donald C. Hubin (whose articles on child custody I commend to the reader) for this argument.

xii The confusion of presumption with mandate is creeping into several areas of Utah family, but the most pervasive and perverse example is where Utah courts and attorneys refer to the minimum statutory parent-time guidelines of Utah Code § 30-3-35 as “standard” parent-time.


xiii See supra n. 2.

xiv And is as convincing as arguing by extension that simply terminating the noncustodial parent’s parental rights is even more stable than sole custody because it dispenses with exchanging the children between parents—plural—altogether.

xv See, e.g.,­Schedules.htm

xvi Yet another benefit of the flexibility inherent in joint physical custody.

xvii See, e.g., one of the best-known studies, Robert Bauserman, Child Adjustment in Joint Custody Versus Sole Custody Arrangements: A Meta Analytic Review, Journal of Family Psychology, Vol. 16, No. 1, 91–102 (2002); see also Joan P. Kelly, Parenting Following Separation and Divorce, Journal of the American Academy of Matrimonial Lawyers, Vol. 19, (2005).

xviii See supra n. 17.

xix See David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 Mich. L. Rev. 477, 563 (1984). Awarding sole custody in the name of—and as a means of— curtailing inter-parental conflict is as measured, as effective, and as morally, legally, and rationally defensible as swatting the proverbial fly with a sledgehammer.

xx P. Emeritus, The Primary Caregiver Fraud, (2012)­rights/family-courts/the-primary-caregiver-fraud. See also Ronald K. Henry, Primary Caretaker: Is it a Ruse?, 17 Fam. Advoc. 53 (1994-1995).

xxi See Dunn v. Dunn, 802 P.2d 1314 (Utah Ct. App. 1990).

xxii See supra n. 20.

xxiii A de jure presumption that the custodial interests of children are best met by awarding sole physical custody of children to one parent renders Utah’s formulation of the best interest standard nominal at best, and a cynical, thinly veiled disguise for the (supposedly) abrogated tender years doctrine.

Some argue that the parental rights of two fit parents effectively cancel each other out. Such a “tie,” so the reasoning goes, requires the court to pick a winner, for the sake of subserving the best interest of the child. But child custody is not inherently a zero-sum game. The best parenting is and has always been a joint enterprise. Indeed, custody ideally exercised in the best interest of the children is jointly exercised. Rather than divorce necessitating that the joint enterprise terminate, the best interests of the child demand that parents sustain the joint enterprise in spite of divorce.

Even without being coopted by a sole custody presumption, the “best interest of the child” makes for a poor “legal standard.” As Dr. Hubin explained it, “best interest of the child” is not a legal standard at all but a policy objective in much the same way that public safety is the aim of criminal law. Dr. Hubin also pointed out that if legal standards and legal presumptions are to serve to foster predictability and reduce the variability of judicial decisions, directing courts and parents to “do what’s best for the children,” fails to achieve the goal. The subjective best interest standard simply substitutes the parents’ authority and judgment for that of the judge, who is then, by virtue of his broad equitable discretion, free to decide custody disputes however the judge desires. Yet judges, as Hubin noted, are not trained in psychology or sociology and, even if they were, no responsible social scientist believes that what is in the “best interest of children” can be reliably predicted. To reduce (not eliminate, but measurably reduce) the guesswork in child custody disputes, leave the exercise of parental rights subject to the parents themselves. Children’s best interests are not superior to, nor are they innately in conflict with, parental rights.

xxiv Come to think of it, due process, equity, and the best interest of children cannot reward a parent who seeks to sabotage joint custody, and such a parent should be deemed per se unfit.

xxv Currently, the following states law either presumes or expresses a strong preference for, joint physical custody: Alaska, California, Delaware, District of Columbia, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Montana, New Mexico, Texas, Mississippi, New Hampshire.

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