In June, Kentucky will become the first state to require a presumption of equally shared parenting in child-custody cases even when one or more parents is opposed. While it’s common for states to prefer joint custody when both parents are amenable, Kentucky’s presumption will apply even without divorcing parents on board. This is a major breakthrough in developing a parenting plan that is often difficult and expensive to come by in family law Courts in California and across the United States.
Kentucky Gov. Matt Bevin signed the measure in April, declaring that judges must presume “that joint custody and equally shared parenting time is in the best interest of the child” in almost all divorce cases. Last year, Kentucky required the same presumption for temporary child-custody cases while divorce is pending. Again, for a state to implement such a broad and powerful message to family law courts across America and Kentucky is quite outstanding. Custody is often so tumultuous to fight in court that to add a presumption of 50/50 without any fighting in court is really setting a different type of family law custody standard now.
Exceptions exist for situations “involving an incident of domestic violence within the preceding three years” or where “there has been a domestic violence order entered” or being entered. Obviously when there is violence the joint custody presumption must be sidelined in order to keep the child safe from any potential violence or abuse.
“A gender-neutral standard for custody was promoted by both feminists and fathers’ rights groups,” writes author Mary Ann Mason.
But even in states with such guidelines, old ideas about the superiority of mothers as caregivers have led to courts favoring maternal custody. Fighting for a presumption of joint custody in law and practice has been a primary goal of the fathers’ rights movement. It is well documented that both parents need to participate in raising a child. Just like the saying goes “it takes a community to raise a child” so does the same logic apply to the necessity and obligation of both parents raising a child.
fathers’ rights activist and National Parents Organization founder Ned Holstein has repeatedly dismissed fears that joint custody laws will lead to unfit fathers raising kids.
Under the new Kentucky law, judges are still allowed to use their discretion and can decide against joint custody in cases where it’s impractical or against the best interest of a child.
In other words, the shift doesn’t mean that judges necessarily will grant shared custody to parents in all or most custody cases. It simply says that the state shouldn’t automatically consider mothers more fit to raise children (as it did for much of the 20th century) or that fathers have more “ownership” right in children than mothers do (as was common in the era prior to supposed maternal supremacy).
With a changing America where both parents are becoming equally economically able to support the family and where roles have changed for women and men inside and outside the family unit a change in how we view custody arrangements also has to change. Kentucky made a huge and very well planned change to family law. Now moving forward we all must take notice that we are not living in the 1950’s anymore and both parents should embrace a new way a raising our children together and not apart.