50/50 Should be the Presumption

Families spend thousands of dollars to fight over the future of their children. This is understandable in that parents have a love and attachment to their children. However, it’s the legal system that has caused the fight and not the parents. It’s time to rethink the traditional approach to custody and time sharing.

In New Mexico we already have a presumption of joint legal custody. This is a legal presumption that is found in the statutes. When something is given the level of a legal presumption that means that absent exceptional circumstances the presumption will carry the day and be ordered. That should be the same way for time sharing.

We can’t tell you how many times the family law judges have chastised parents for fighting over their children. They say things like “your fighting is what is making things worse…” We understand what the judges mean but upon further reflection it is the court system and legal system that is creating the conflict.

The court is tasked with determining the best interests of the child. This, in turn, requires the parties, the court and everyone involved to start weighing factors that define the best interests of the child. Try defining the best interest of the child. What does this mean? Judges won’t agree. It isn’t defined by statute. It’s more like Justice Stewart’s remarks “I’ll know it when I see it.” That is what is causing parents to fight.

There is a better way. Both parents made the child. Both parents want as much time with the child as possible. Thus, the legislature should start from the position that 50/50 time sharing is in the best interests of the child. From there the “fighting” will become less intense because instead of trying to one up each other, the parents would have to have extraordinary circumstances that would warrant a decrease from 50/50.

Are we ready for such a legal presumption? I think the people are ready. However, the family court lobby and the cottage industries surrounding it probably aren’t ready for such a change. This is because it would drastically reduce litigation costs and the “experts” surrounding custody determinations.

Missouri has started down this road. See this link. While a start it’s not necessarily far enough. Here is a great article by a woman as to why a presumption of 50/50 should occur. By creating a presumption of 50/50 we would start helping families save money, time and heart ache. What do you think?