The Problem with Presumptions-A Review and Commentary

Decisions in child custody cases involve a myriad of factors, including the application of state statutes, case law and the specific facts of a case. In recent years, presumptions regarding child custody have become an increasingly frequent part of the decision-making process. Upon the finding of a threshold fact, these presumptions, in effect, create "secondary facts" which the judicial officer is required to use, in lieu of actual evidence, once the threshold fact is established. Barriers to overcome the presumption are often high, and judicial officers may vary as to the standards they apply in determining whether the evidence required to overcome the presumption has been met. In this commentary the authors describe various types of presumptions and arguments usually advanced to support them, then provide a critical analysis of the problems that occur when this type of reasoning is applied to decisions in child custody cases. While some examples of presumptions are discussed and examined in light of relevant research, the authors' focus is more conceptual, examining the issue of detailed presumptions as a mechanism for decision-making in child custody cases. We suggest that, while much debate focuses on the wisdom of specific custody presumptions, less attention has been focused on the general appropriateness of presumptions as an approach to decision-making about the lives of children and families.