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Consider the advantages and disadvantages of presumptions in custody decision making
Upon divorce, many families face the dilemma of children’s custody and it takes the intervention of legal institutions to decide on who should end up with the children. However, decisions on rightful custody of children are determined through presumptions, whereby the court makes decisions based on historical engagements between the parents, behavioral analysis, and other sensitive issues that are considered relevant to custodial care. Many people have considered presumptions as relevant, while others have considered the approach as less significant.
Advantages
One of the advantages associated with presumptions is the reduction of litigations upon divorce. The use of presumptions makes the decision process faster and more certain, as compared with the use of other settlement techniques. Children are less likely to experience the effects caused by the break-up due to the reduction in children’s litigation and the speed of making custodial decisions. Presumptions decisions focus on a child’s welfare and therefore offer the best for the child. The other advantage is that presumptions eliminate the chances of unfair judgments. Presumptions use facts to make decisions on who is eligible for the custody of a child. In case a specific judge is biased and unfair, presumptions help in eliminating unfairness and injustice when making custodial decisions.
Disadvantages
One disadvantage with presumptions is that it generalizes judgments by trying to simplify complex situations. The attempt to attain a simplified judgment from a complex situation may lead to unreal decisions. Complexities within specific families require complex approaches that are flexible enough to deal with the problems.
Presumptions mostly favor mothers, due to the biological capability to bear and take care of children. The fact that mothers conceive and carry hold the pregnancy for nine months qualify them as good parents. Fathers have to prove the incapacity of the mother, mostly through medical records, to be granted custody of the child.
How, if at all, should child support and visitation be used to impact the other?
Upon divorce, the Child Support Enforcement program mandates either parent the child’s custody depending on the eligibility of the parent to take care of the child as expected by law (Emery, Otto, & O’Donohue, 2005). The other parent gets the right to support and visit the child severally and according to the legal agreements made before an attorney. If a non-custodial parent fails to meet the support obligation, the rights to visitation should be reduced accordingly, with regard to the adherence to the legal mandates. A non-custodial parent must adhere to the support obligations in order to have the right to visitation. Many divorcees have argued that support obligations and visitation rights should be independent. Since the Child Support Enforcement program does not address visitations, non-custodial parents should be restricted on the number of visits if he or she fails to meet the support obligations.
Child support is an essential process that promotes quality life, access to education, medical services, and other basic and secondary needs. If a non-custodial parent fails to meet support obligations, there should be a reduction in the frequency of visitations as a way of encouraging cooperation towards the development of the child. Failure to meet support obligations reflects a lack of moral and parental obligations in promoting quality life for the child. Reducing the frequency of visitations encourages the non-custodial parent to be actively involved in the child support program. By allowing the non-custodial parents to proceed with normal visitations, parents are likely to abandon their responsibilities and should therefore be discouraged until they meet their parental responsibilities. Parental responsibility encompasses economic, emotional, and physiological support and failure to meet either of the obligations affects normal child development.
Property and Assets Distribution upon Divorce
In dividing property and assets upon divorce, many couples find it hard to deal with the problem of identifying the ownership of properties acquired before and within the marriage. Upon divorce, the distribution process of assets and property should first separate marital and separate property. Unlike some existing legal provisions in some American states, that guarantee the spouse’s equitable distribution, separation of marital and separate assets creates a fairground on which to share the property. Separate property and assets are identified as those acquired by either individual before the marriage, gifts presented to an individual before or after marriage, and compensation on pain or suffering of either spouse before and after marriage. Marital property is all the accumulated wealth acquired after marriage. The marital property combines all the wealth acquired by both spouses irrespective of personal contribution from either of the spouses to acquire the property and assets.
Separation of marital property from the separate property offers each spouse a fair and justifiable share of all the wealth acquired before and after the marriage. The approach does not subject any of the spouses to unfair distribution. Wealth acquired by either of the spouses before marriage should not be included in the distribution plan. Each of the spouses deserves an opportunity to protect his or her wealth acquired before marriage since the wealth practically belongs to him or her. However, distribution of the entire wealth irrespective of who acquired it and when it was acquired does not offer either of the spouses a fair and justified claim on his or her efforts. The nature of the distribution of property and assets upon divorce should separate wealth acquired before and after marriage.
References
Amato, P. (2003). Reconciling Divergent Perspectives: Judith Wallerstein, Quantitative Family Research, and Children of Divorce. Family Relations 52, 332-339.
Emery, R. E., Otto, R.K., & O’Donohue, W.T. (2005). A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System. Psychological Science in the Public Interest 6 (1), 1-29.
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