Janet L. Goehle, Attorney at Law
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Are changes in custody law in children's best interest?

One of the most contentious issues in many state legislatures throughout the nation is the idea that joint or equal physical custody should be mandatory for any children of a couple who are divorcing. In many states, joint, shared custody has been suggested as being the preferred custody choice by the legislature, but typically judges have the discretion to determine custody based on what is in the best interests of the child.

By changing the law to require joint custody unless the judge makes findings that show it would not be in the best interests of the child, it could have a significant effect on how custody arrangements are put in place.

This is because it shifts the burden of proof to the person opposing joint custody. This means if you oppose your spouse having joint physical custody with equal parenting time, you have to come up with evidence that will be convincing to a judge.

While this may sound like a subtle shift, burden shifting, as it is called, is very important and powerful. A mother or father may stay in an abusive relationship because the type of abuse is subtle and it is difficult to collect irrefutable evidence. Statements made in a darkened bedroom may sound very different in a courtroom.

A spouse may refuse to divorce in this situation out of fear that the child or children will suffer abuse when they are with their children's other parent.

The movement to change these laws appears to be well intentioned, but current laws in Minnesota and most other states allow for the best interests of the children already. The parents are always free to agree to an equal, shared custody arrangement that permits the children to spend as close to 50 percent of their time with each parent.

In cases where there is strong disagreement as to which parent should receive primary physical custody, it seems like focusing on the well-being of the children is generally a better perspective. The children did not bring about the divorce, and if anyone should make a sacrifice, it should not be them.

Source: wfla.com, "State Senate passes divisive alimony, child custody revisions," Associated Press, March 5, 2016,"

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