This article is a guest submission by Mathew Hickok, Chairman of the FUAN Custodial Reform Committee (CRC)
[DISCLAIMER: The opinions expressed in guest posts, are the personal opinions of the author.
They may or may not reflect the opinions of Families United Action Network (FUAN) or its individual members. Note that submissions are edited for clarity if needed.]
Why a Rebuttable Presumption is Necessary in Every Shared Parenting Bill
As all recent, credible, peer-reviewed studies are showing that shared parenting is the optimal outcome for the majority of children of divorce, states across the nation are debating how to alter or rewrite their laws to implement this new reality. Iowa is no exception.
While there are many ways to go about this, there is one element that is necessary to any Shared Parenting bill: The Rebuttable Presumption.
What is a rebuttable presumption?
A rebuttable presumption is something that is assumed to be true unless there is evidence that would prove that assumption to be false. “Innocent until proven guilty” is the classic example of this in criminal court. Any defendant on trial will be presumed to be innocent until and unless it is proven beyond a reasonable doubt that he/she committed the crime they were accused of.
In the realm of shared parenting, a rebuttable presumption is an assumption that both parents are fit to raise their child(ren) and each should spend equal (or nearly equal) time with them. It is not ironclad; it merely represents a starting point that would be standard in every custody case.
The presumption could be overcome with evidence that one parent is abusive, or neglectful, or is doing something else that places the child in immediate harm’s way. It could also be overcome if one parent has chosen to relocate a significant distance away making it difficult to maintain a healthy routine while still splitting parenting time equally.
Why is this rebuttable presumption such an important element of a strong Shared Parenting Bill? Let’s take a look.
1. It protects the rights of children to maintain a significant relationship with both of their parents.
It is often the case now that during a divorce, a child will be placed primarily with one parent, while they will only see the non-primary parent every other weekend and perhaps for dinner on Wednesday.
This significant imbalance in parenting time makes it difficult for the child and non-primary parent to maintain a meaningful relationship.
The rebuttable presumption would maintain significant parenting time for both parents and protect both parent-child relationships.
2. It changes the purpose of the trial from “finding the better parent” to “protecting the child’s relationship with both parents”.
This is crucial because rarely do both parents possess the same skill level. One parent is often a little better at guiding the child through their daily routine, but that does not mean that the other parent is incapable.
The importance of having both parents present, active, and involved far outweighs any small disparities in parenting skill or experience.
3. It eliminates judicial bias while maintaining judicial discretion.
A rebuttable presumption that assumes equal time with both parents negates any preconceived notions or biases that a judge may hold.
Many judges still believe in the Tender Years Doctrine that says that a young child should spend the majority of their time with their mother and limit the amount of time and overnights with their father for instance.
Under the current law, that judge would likely assign primary custody to the mother and every other weekend to the father.
A rebuttable presumption of Shared Parenting would prevent that action unless there is clear and convincing evidence that such an arrangement would put the child in immediate danger.
Judges will be forced to consider only the evidence presented to them and leave their personal feelings and biases out of the equation.
4. It protects children from abuse and neglect.
There is actually a common misconception that a rebuttable presumption eliminates the judicial discretion necessary to keep a child away from an abusive parent, but in fact, the opposite is true.
By its very nature, once clear and convincing evidence of abuse is shown, the presumption is overcome or ‘rebutted’.
At that point, the judge may tailor and order a custody arrangement that protects the child from abuse while still allowing the child to have some contact and a relationship with the abusive parent.
5. It significantly reduces conflict in custody cases.
In the current winner take all environment, parents will fight and argue to the death, even going so far as to lob false allegations of abuse or neglect towards the other parent in an attempt to gain the upper hand in the case.
When a rebuttable presumption is introduced, each side knows that any allegations are now going to have to be proven through clear and convincing evidence, and as such, it is highly likely that the number of false accusations will decrease dramatically.
While parents with truly legitimate concerns will still have the opportunity to present evidence and prove their case, those who would use false allegations to gain the upper hand will now have a significantly reduced ability to do so since evidence will be required to overcome the presumption.
In turn, these parents will switch their focus from destroying the other parent in the courtroom to accepting reality and figuring out how to successfully co-parent their children.
Not including a rebuttable presumption in Shared Parenting Legislation could have unintended consequences.
Imagine that a Shared Parenting bill was signed into law without the rebuttable presumption stating only the judge “shall order joint physical custody.” This would have two very real, very dangerous consequences:
First, because the rebuttable presumption no longer exists, there is no litmus test to determine whether a parent is fit or unfit.
In fact, there could be clear and convincing evidence of abuse and neglect, but because the law is written with no rebuttable presumption, the judge’s hands would be tied, and the children would be ordered to spend half of their time with a known abuser. This puts their safety and their very lives at risk.
Second, without the rebuttable presumption, parents that wish to have a reduced role in their child’s life or wish not to be involved at all would be ordered to take on an equal role in raising their child.
While every parent would ideally want to play a significant role in raising their child, the reality is that many do not.
Forcing these parents to share parental time is not only a violation of their rights, it puts the children in a less loving environment and potentially exposes them to neglect and emotional harm.
The rebuttable presumption is the single most important part of any Shared Parenting bill.
The rebuttable presumption is the single most important part of any Shared Parenting bill. It protects the children’s and parent’s rights to a significant relationship while simultaneously protecting them from abuse and neglect.
It eliminates judicial bias but does not prevent them from taking action when it is clear that a Shared Parenting arrangement is likely to cause harm to the child involved.
It also maintains the rights of parents who wish to settle on a different arrangement outside of court and those parents who do not wish to be involved in raising their child.
Written by Matthew Hickok, FUAN Chairman, Custodial Reform Committee (CRC)
Matthew Hickok is a 2015 graduate of the University of Northern Iowa with a degree in statistics and actuarial science and is employed at Transamerica in Cedar Rapids.
He is passionate about math, health and fitness, traveling, planning romantic dates, basketball, and family law reform.