It could distract judges from focusing on the best interests of individual children and prompt drawn-out fights about how exactly to define shared physical custody. Would summers and major holidays with Dad count, for example?The divorce lawyers want judges to have more discretion because it gives more issues to litigate and makes more money for lawyers.
Charles Kindregan, a law professor at Suffolk University, soundly argues that a presumption of joint legal and physical custody could handcuff judges who should be free to consider the best interests of children on a case-by-case basis. "You don't need a presumption when you have facts," Kindregan says. ...
"We trust the discretion of judges," says Fern Frolin, a lawyer and the chair of the Massachusetts Bar Association's family law section, who says there is already an appropriate shift toward more shared parenting.
The same arguments could be used to tell courts to disregard contracts. Why handcuff a judge to respect a contract when he could be free to just do what's best, on a case-by-case basis?
I think that is obviously ridiculous, but I'll try to answer it anyway. Businesses and individuals need contracts to give predictability to their transactions, and control over their lives. If any deal could be broken by some judge who thinks that you don't need a presumption when you have facts, then our society would revert to something resembling a medieval monarchy.
The family courts do not even have the facts. The judge will listen to a few snippets of bogus hearsay about the kids, and act like he knows better than the parents. In four years of being in family court, I have never seen a family court judge bother to learn the first thing about the kids in a case before him. People like Comm. Irwin H. Joseph just are not concerned with the facts.
The argument that equally shared custody is somehow harder to define than other arrangements is just absurd. I can tell you from personal experience that unequal arrangements and visitation schedules cause far more fights in court. And while I have seen dozens of cases fighting about visitation schedules, I have never seen a case fighting about shared custody in court. The reason is simple. The visitation disputes almost always result from one parent trying to bully the other parent. When the responsibilities are equalized, it is a whole lot harder to do that.