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If a Mom Is Abusing Her Children, and the Dad Doesn’t Want Sole Custody Because Child Support Is Cheaper, What Can the Court Do?

Thank you for your question, and forgive me for approaching this question in a way that may not answer your question as directly as it could be; I hope you will find my answer enlightening just the same.

If my purely selfish desires regarding particular controversies that I’d like to handle as a lawyer wouldn’t affect real people’s lives, then I’d love, as a divorce and family law attorney, to represent one of the parents in a case where 1) neither parent wants sole custody of the children and 2) each parent wants to foist custody of the children on the other.

Why?

Because it would shine a light on the moral and intellectual bankruptcy of the belief that it is somehow wrong to award joint equal physical custody of children to two equally fit and loving parents who both desire to be as involved in their children’s lives as possible.[1]

How?

Because the court would find itself in the unusual position of dealing with parents fighting to get as little time with the children as possible and thus find itself having to formulate and make arguments for both parents exercising custody of their children as much as possible (instead of trying to justify an unequal custody award where equal custody could clearly work or at least merit a try).

The cognitive dissonance would be glorious—absolutely glorious—to behold. The infirmity of the “arguments” for denying two fit, loving parents equal custody would be laid bare for all to see.

Not every parent is fit to exercise joint or sole physical custody of his/her child, but parents who are 1) fit and loving; 2) desirous of ensuring their children are reared as much as possible by both of their parents; and 3) live in close enough proximity to each other to make joint equal physical custody not merely feasible but beneficial to the minor children: A) should have their parental rights upheld to the fullest extent possible by awarding joint equal physical custody because B) the “best parent” for the children is both parents.

The idea that we presumptively divide marital assets equally in divorce because that is presumptively fair is the same reason we should presumptively award joint equal physical child custody. If the presumption of dividing marital assets equally is rebutted by showing, for example, that a spouse materially dissipated marital assets or wrongfully diminished their value, then clearly an equal division of the assets would not be fair. Likewise, if the presumption of awarding equal custody is rebutted by showing that it would be deleterious to the children in some material way, then an equal custody award would not be fair to the children.

Yet the laws of most states in the U.S.A. do not adopt a presumption of joint equal physical custody (but I should note that currently the legislative trend is toward adopting presumption of equal custody), and even among those states that do, many judges in those states disfavor equal physical custody awards.

For all the good sense equal physical custody makes, it is surprisingly (scandalously) difficult to obtain an equal physical custody award.

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[1] To quote the Core Principles of the National Parents Organization (sharedparenting.org):

Shared parenting protects children’s best interests and the loving bonds children share with both parents after separation or divorce;

Equality between genders has been extended to every corner of American society, with one huge exception: Family Courts and the related agencies; and

The Supreme Court of the United States has found that “the interest of parents in the care, custody, and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/If-a-mom-is-abusing-her-children-and-the-dad-doesn-t-want-sole-custody-because-child-support-is-cheaper-what-can-the-court-do/answer/Eric-Johnson-311

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