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Child Custody Presumptions | LegalMatch Law Library

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What is a "Presumption" in Child Custody?

One of the issues that parents have to think about upon divorce or legal separation is the issue of child custody. Figuring out child custody can be a complicated task, especially if the parents disagree about the custody arrangement. For example, parents may disagree about where their child is to live, who is to take care of the child, who is to make decisions for the child, etc. In situations where the parents are unable to come to an agreement, the court must make the decision.

Each of the states have established a set of criteria that would help the courts make the final decision for child custody. The general guiding principle for child custody cases is whatever would be in “the best interests of the child.” However, depending on the policy adopted by the state, courts can presume that a certain custody arrangement is best for the child.   

General Presumption of Joint Custody

Several U.S. states have adopted a presumption of joint custody, including: 

  • Florida,
  • Idaho,
  • Iowa,
  • Louisiana,
  • Minnesota,
  • New Hampshire,
  • New Mexico,
  • Texas,
  • Utah,
  • Wisconsin, and
  • The District of Columbia. 

In these states, when parents cannot agree, the judge grants joint custody for both parents. However, a presumption of joint custody does not always guarantee joint custody. This presumption is weighed against certain factors, such as: whether a parent is a perpetrator of domestic violence, whether the parent or child has special mental or physical needs, the physical distance between the parents, etc.

Another thing to note is that the definition of “joint custody” may differ based on which state you are in. For example, some states may define “joint custody” as joint physical custody. Other states may define “joint custody” as joint legal custody. Some states may use “joint custody” to mean both physical and legal custody.

Presumption of Joint Custody If Both Parents Agree

A few other states adopted a general presumption of joint custody, but only if both parents agree to it. In these states, the judge can still rule joint custody even if the parents do not agree. However, the idea is that if both parents agree to joint custody, then the judge will most likely rule joint custody. The states that adopted a general presumption of joint custody, but only with the agreement of both parents include: 

  • Alabama,
  • California,
  • Connecticut,
  • Mississippi, and
  • Nevada.

Joint Custody as an Option

In the remainder of the states, joint custody is available as an option. In short, the judge has the discretion to determine whether to grant joint custody.

Presumption of Not Giving Custody to Parents Who Committed Domestic Violence

Most states have adopted a presumption against giving custody to a parent who has committed domestic violence. The domestic violence does not have to be committed against the child for this presumption to surface.

Should I Seek Legal Help?

Dealing with the process for child custody can be an overwhelming process. If you need help resolving a child custody issue, contact an experienced child custody lawyer today.

Photo of page author Sally Hong

, LegalMatch Legal Writer

Last Modified: 05-03-2018 08:47 PM PDT

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