In Win For Fathers' Rights, Kentucky Says Judges Must Presume Shared Parenting In Child Custody Battles

The presumption applies even when one or more of the parents is opposed.


Hill Street Studios Blend Images/Newscom

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.

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.

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.

A Slow Shift

As of 2012, nearly half of American states stipulated a presumption or preference for joint custody in cases where parents agreed to it, according to "The Roller Coaster of Child Custody Law over the Last Half Century," published in the Journal of the American Academy of Matrimonial Law.

"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.

More than 20 state legislatures in 2017 considered bills "that would encourage shared parenting or make it a legal presumption," notes The Washington Post Almost 20 related bills cropped up in 2015, too.

Despite all this attention, however, few of these bills have fared well, and those that did advanced more incremental changes (such as an Oregon law expanding the number of weekend days a non-custodial parent could visit their children) rather than creating a complete presumption of shared custody.

A 'Radical' Step?

"A presumption is a pretty radical step," Maritza Karmely of Suffolk University Law School told the Pew Research Center (PRC) in 2016. "That assumes that shared parenting works for most families, and I think that is an enormous assumption."

Pew points out that most child custody cases won't go before a judge: only about 10 percent are actually settled in court. "Cases that judges do hear are more likely to be ones in which parents can't communicate or cooperate to make decisions," it says, and "in those high-conflict situations, some researchers have warned that joint custody may be harmful to a child's well-being."

But 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).

America's current child custody laws "were based on the sexist belief that mothers are better than fathers at raising children," Wake Forest University psychology professor Linda Nielsen told the Post last year. "Well, the research does not support that."

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  1. While it’s important the consider the individuals involved, a “weak” presumption in favor of mothers is the only thing in line with all anthropological records, past and present. Fathering is facultative in a way mothering doesn’t even come close to.

    1. Only one of the implications is that judges should carefully look at whether fathers use custody as a bargaining chip and deceptively. Ignorance is no victory for “feminism”, unless it wants to use this field as means to undermine “gender stereotypes” (which, however, are 1) generally accurate, and 2) not so easily changed), whatever the ill effect on those here involved..

    2. Are you sure? Until fairly recently in human history, childbirth was dangerous enough that, combined with deaths from infectious diseases, fathers raising children without their mothers was pretty common.

      1. That’s why until fairly recently, civilization was so unwoke.

        1. Yes, the rates were sth like 40-60% (not reaching age 15), and for millenia. That’s a massive influence, commonly overlooked. I don’t recall the data for women themselves, but these rates are substantial as well.

      2. I am pretty sure, Slocum. Take a look at Sears/Mace, Who Keeps Children Alive? A Review of the Effects of Kin on Child Survival, 2008 (open access at researchgate.net). You can also move to Hrdy’s Mothers and Others, Harvard UP, who sees a significant role for fathers (while not rejected these data), and Low, Why Sex Matters, Princeton UP, rev. ed.

        1. Correction: Her name is [Sear].

    3. re: “the only thing in line with all anthropological records”

      Citation, please. Because all the available evidence I’ve seen says that your talking through your hat. There is exactly zero credible evidence supporting the presumption even weakly that mothers are inherently more fit parents.

      1. Only true for ages birth through about 3-4 years old. Lots of studies on how new mothers hear different emotions in her child’s cries, etc.

        1. But even here, mothers are more dangerous to newborns than fathers. 100% of newborn murders are by the mothers.

      2. Only true for ages birth through about 3-4 years old. Lots of studies on how new mothers hear different emotions in her child’s cries, etc.

      3. Only from birth to about age 3-4 years old. Lots of studies showing stuff like new mothers are able to differentiate emotional states of newborn from its cries, better sensory perception in women, multi-tasking, etc.

    4. I just got paid $6784 working off my laptop this month. And if you think that?s cool, my divorced friend has twin toddlers and made over $9k her first month. It feels so good making so much money when other people have to work for so much less.
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  2. I predict a spike in domestic violence accusations.

    1. Indeed, that’s a mirror image. And I doubt one should believe all feminist victories there.

  3. My ex has three kids by three different men. Me being one. All her kids were raised by their fathers. Including mine. She’s a deadbeat.

    Giving birth doesn’t make a woman a mother anymore than squirting sperm makes a man a father.

    1. Wrong. It’s oxytocin oceans, and prolactin lakes.

        1. Involved in childbirth, breastfeeding, and attachment mechanisms.

          1. (That’s not to say there are no bad mothers. All sorts of things go wrong, women are responsive to their environment [ranging up to infanticide], and there are outliers, and outright liars.)

          2. Well my daughter was not breastfed and was diagnosed with failure to thrive. She is attached to me. Her mom is just someone she visits.

            1. Maritza Karmely, the law professor quoted by ENB, is one reason why I do not give any money to my law school alma mater.

              Of course, I don’t donate to Big Education or Big Charity, ever.

            2. That makes sense.

    2. Sounds like she likes vodka and benzos, like my egg donor.

  4. We are reminded in constant ads that there aren’t enough women in state legislatures. Yet the men who make up the majority seem to go along with laws that, on balance, discriminate against fathers. Looks like women hold more influence than they admit.

  5. The biggest reason that Karmely is full of shit is that the alienation experienced by fathers with their children, due to the actions of spiteful mothers who use the kids as leverage, is more to blame than fathers being inherently less capable of raising kids. It’s one thing if the father doesn’t want to have anything to do with their kids, but if that’s the case, they should be given the option upfront to sign away their parental rights, rather than drag everyone through the trauma of unpaid child support and broken promises for several years, if not decades.

    1. You obviously have little or no experience in this field if you think that giving either parent “the option upfront to sign away their parental rights” would be a rational solution for anything

      1. Women already have that option. In fact, they can sign away not only their own parental rights, but the father’s as well. They aren’t even required to inform the father that he has a child. Crazy, innit? I recommend Karen Straughan’s video series on legal paternal surrender, and why allowing it would be more just than the current state of affairs. Parts 1, 2, 3, and 4 here.

  6. My wallet, your choice!

  7. I notice that nowhere in this bigoted rant are families other than ‘one man one woman’ addressed.

  8. This should always have been the presumption. And like all legal presumptions, it is always a rebuttable presumption. If Karmely knows of a particular situation where shared custody is not in the best interests of the child, she is welcome to present that particularlized evidence. Sweeping generalizations and negative stereotypes won’t cut it.

    It should be absolutely required that the parent arguing for sole custody actually present some credible evidence before a court revokes the other parent’s rights. Congratulations to the KY Legislature for taking this first step.

  9. 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.

    Expect an explosion of dubious DV claims.

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  11. I have my son full time because his mother has severe obstacles to parenting. Gets me laid a lot

    1. Do you match with every single mom on Tinder/bumble?

  12. I have my son full time because his mother has severe obstacles to parenting. Gets me laid a lot

  13. Feminists support this? Really? Did you not notice that the NOW, the most prominent feminist organization in the country, has viciously opposed custody equality for a long time, even equating fathers’ Rights groups to pedophiles? Maybe some feminists are on the right side, but even to say the majority would be questionable. A lot of men have fought a long time for this kind of policy and been called misogynists constantly along the way; it’s a bit annoying for one to try to retroactively claim credit on behalf of feminism for this.

  14. Hate to burst the author’s bubble, but this presumption is built into the California Family Law statutes and has been for quite a while. In general, it works. Sometimes it does not, and yes we have our share of bogus domestic violence and child abuse claims (I have defended more than one). But given that they happen and have happened consistently enough over the years most judges are fairly adept at cutting through the bull.

    The presumption applies to biological parents, and so in a same-sex marriage the “other” who is not biologically related to the child has a difficult row to hoe. But I’m sure imaginative but short-sighted legislators can work it out.

  15. https ://legal-dictionary.thefreedictionary.com/ presumption

  16. ENB, not sure about Kentucky being first. In 2012, Arizona law changed to maximize the parenting time of both parents, with no gender preference allowed, exceptions only with respect to drug use or domestic violence.

    Which meant 50/50 parenting time for all intents and purposes. I know this because I got divorced immediately after that and my soon-to-be-ex accused me of waiting for the law to change so I could “deprive her of her children”… she had expected me to see them only every other weekend like in The Good Old Days. She was wrong about that, but she was not wrong about the law changing… that was true, and my kids are all the better for it.

    1. Watch out for parental alienation.

  17. In the stunning new book “The Boy Crisis,” author Warren Farrell writes, “Moms Have the Right to Children, Dads Have to Fight for Children.”

    “A 2016 study of social workers documented a key obstacle to custody that dads encounter worldwide: “Social workers tend to consider the children’s wishes as long as their preference is for maternal custody. When children express a paternal preference, their wishes carry no weight.”

    “This professional bias against dads did not come out of nowhere. The feminist movement, initially supportive of father involvement, began opposing equal rights for dads of divorce in the early 1970s.”

    Amazing. Yet many in society see every man as more privileged than every woman.

  18. I’m a father, and the courts gave me 100% custody. This presumption woulda got my kid killed. Molon Labe, bitch.

  19. My dad got joint custody of me when I was a kid, against my mothers wishes. But he had to fight like hell to do it, even though he was clearly the more responsible of the two on paper.

    I think it is reasonable to give people joint custody if there are no obvious major issues. I think even getting to see a slightly dysfunctional parent is probably better for the kid than NEVER getting to meet your parent. Everybody I ever knew that’s been truly weirded out in their head about one of their parents is because they literally never met them or spent time with them. It creates real abandonment issues. Often times it was because the mother refused any interaction, and it was in the days when they tended to get sole custody. Women can be spiteful like that, and it’s not good for the kids. My mom tried to do that, and if she’d succeeded I would have been A LOT worse off for it.

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