How Can a Joint custody presumption threaten a child's happiness and welfare? 

Legal presumptions are “rebuttable.”  A presumption that joint physical custody is in the child’s best interest would be “rebuttable.” That means the judge would not have to order joint custody if a parent produced evidence that joint custody is not in the child’s best interest.

But:

Most of the time custody orders are made without giving a parent a chance to rebut the presumption by showing that joint custody is not in their child’s best interest.

Here is how that happens:

A case involving custody, such as a divorce, can take a long time to go through the court system for a final decision. Parents usually need to settle issues like custody, parenting time schedules, visitation, and child support right away. They file motions for “temporary” orders covering these subjects. They schedule a court hearing on their motion. Before the hearing they will meet with a probation officer to try to work out an agreement. If they cannot work out an agreement, they will present their argument to the judge. Usually they will not have the opportunity to present evidence or testimony. The judge will make a “temporary” order, and that order will be in effect until the final decision.

If there is a presumption of joint physical custody, the judge will be making orders that last a long time. They would be doing so without having considered any evidence about what is in the best interest of the child.

Children’s happiness and welfare are threatened if they have to live under a temporary joint custody order based on a presumption with no evidence of what is in their best interest..

Making temporary orders at the beginning of a custody case without considering evidence of what is best for the children can make their situation unstable at a time when they need stability more than ever. Joint custody arrangements involve shuttling the child between different homes, lifestyles, and socioeconomic situations and subject the child to inconsistent rules, methods of discipline, and parenting styles.[1]  The child suffers because of this instability

[1] Maritza Karmely, Presumption Law In Action: Why States Should Not Be Seduced Into Adopting a Joint Custody Presumption, 30 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 321 (2016) at page 341.

Prepared for the Custody Awareness Collaborative by Attorney Jeff Wolf of MassLegalHelp and Community Legal Services and Counseling Center.  February, 2017.

Making temporary orders at the beginning of a custody case without considering evidence of what is best for the children can make their situation unstable at a time when they need stability more than ever. Joint custody arrangements involve shuttling the child between different homes, lifestyles, and socioeconomic situations and subject the child to inconsistent rules, methods of discipline, and parenting styles. [1]  The child suffers because of this instability.

[1] Maritza Karmely, Presumption Law In Action: Why States Should Not Be Seduced Into Adopting a Joint Custody Presumption, 30 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 321 (2016) at page 341.

Prepared for the Custody Awareness Collaborative by Attorney Jeff Wolf of MassLegalHelp and Community Legal Services and Counseling Center.  February, 2017.