When a couple with a child divorces, a judge is supposed to start with a clean slate before deciding whether the child will live solely with mom, dad, or split living with each of them.
But under a legislative proposal, judges would presume the child would live with both parents unless there's a good reason not to -- such as child abuse.
While adding the word "presumption" to a statute may seem trivial, it would level the legal playing field that fathers' rights groups say is currently tilted against them.
That's the way Les Jobst of Andover sees it. He drives a semi with a picture of his smiling 9-year-old daughter on the dash. He's also a member of the fathers' rights group called, Fathers-4-Justice, which contends that the court system tends to favor mothers in divorce cases.
“Joint custody can be the worst for kids if it's used to divide the child between two very contentious parents. It can leave children in essentially a war zone.”Robert Emery, scholar on children and divorce
Jobst says once a judge decides that a child will live solely with one parent, society views the other parent as having no rights.
"I'm a concerned father. I'm here, I'm trying to work and find out what's going on with my child," said Jobst. "It happens in the doctor's office, it happens in the dentist's office, wherever you go. All you have to have is one parent say, 'I've got sole physical custody,' all bets are off."
Jobst says changing the laws so that judges presume divorced parents share physical custody would allow children to spend more time with both parents.
The state already presumes that both parents will share legal custody of children, which is different from physical custody.
Legal custody gives parents the right to make important decisions for their children such as what religion to follow, what medical procedures are necessary or what school to attend. Physical custody determines with whom the child lives.
One divorced mother believes changing the law on physical custody would simplify the divorce process. Ann Fleischauer says divorcing parents now can use the issue of who the child lives with as a bargaining chip in negotiations.
Fleischauer says the presumption of joint physical custody would take one of the most contentious divorce issues off the table. She says society has changed, and the law needs updating.
"With families where you have both parents who've got busy careers, both parents who are used to dealing with a lot of the same challenges around kids and activities, balancing financial situations -- it just seems as though it's a better starting point," said Fleischauer.
But another divorced mother isn't quite sure the law change would make any real difference. Martha West says the label of joint physical custody is a bit misleading, because it leaves the impression that children would split their time 50/50 with both parents, when in reality one parent could end up living with the child most of the time.
West says the presumption may save one step in the process, but the couple still has to hash out a schedule and child support for two individual households.
"You're creating a binuclear family, and so how is that going to work?" West asked. "To say that the parents will have joint physical custody is great. It might make everybody feel better, and it may take some of the emotion out of the mediation process at the outset. But unless there's going to be some connection made with the visitation schedule, I'm not sure it really has a lot of impact."
One father has deeper concerns. George Slade of St. Paul is a divorced father of two girls. He says his divorce was amicable, and both he and his ex-wife wanted to share physical custody of their daughters.
But Slade questions the law's impact on families where one parent may know he or she can't be a good parent on their own.
"When you get divorced, in some context you have to stand up in front of a judge and say, 'I no longer want to be married, I want a divorce, I want to separate from you.' You have to say this to someone to their face," Slade said. "But to say this about your children, even if it's just to a judge, in effect you're speaking to the kids through the court record. What a guilt-ridden thing that would be to force someone to say, 'I don't want my kids.'"
One national scholar on children of divorce says a number of states have considered using the presumption, but Idaho has actually done it for the past several years. Robert Emery says Australia has also enacted it with varied results.
Emery says ordering judges to start with the idea that joint physical custody is the way to go in divorce cases can be the best and the worst of worlds for children. He says it's the best arrangement for children when parents can set aside their conflict.
"Because kids can learn, even despite their parents' divorce, that they still have two parents. And we have good research that shows kids thrive in that situation," said Emery. "But unfortunately, joint custody can be the worst for kids if it's used to divide the child between two very contentious parents. In that case, it can leave children in essentially a war zone."
Emery favors an idea that mirrors the amount of time parents spend with their children during the marriage. So if a mother spent 40 percent of the time with a child during the marriage, the child would live 40 percent of the time with her after the marriage is over. This would all be open to negotiation.
The group looking at the custody issue must submit a report to the state court administrator. That administrator is supposed to report the group's recommendations to the Legislature no later than Jan. 15.