Child custody cases are treated like no other kind of case that I can think of in that trial court judges are left with little by way of instruction in resolving these cases coupled with nearly limitless discretion. Add to that the lack of any jury and you get unpredictable outcomes. I have seen cases where parents who were not even accused of any wrong doing, abuse, abandonment or unfitness be relegated to infrequent contact with their child while unfit parents, including a 60+ year old man who took advantage of a 19 year old, get custody or shared custody. Judges in custody cases have seemingly boundless discretion. We don't trust this level of discretion in other cases. In criminal cases we have sentencing guidelines. No one believes that a judge should be empowered to order a life sentence for speeding; and no one believes a $50.00 file is acceptable for murder. However, judges are free to treat fit parents as unfit, and unfit parents as fit parents. Guidelines are needed to bring child custody rulings into conformity with the nature of each case. There is no legitimate basis for objecting to guidelines in custody cases. Where the parents are fit the range of outcomes should be consistent with the parents' capacities to care for their children. Likewise, unfit parents should not be custodians of children. If a rebuttable presumption in favor of shared parenting were adopted for cases involving two fit parents then consistency in rulings would result. Additionally, children and parents would have greater due process protection of their rights and children would have healthier, better lives according to available scientific data.
Austin is an experienced litigation and constitutional law attorney.
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