the parents’ continuous use of controlled substances. 7 Regardless of these various considerations,
there remains an incredibly strong de facto8 presumption that joint custody9 is in the best interest
of a child. 10
Though joint physical custody may be in the best interest of many children in theory, it
does not serve the long-term best interests of children in practice. Rather, it takes an idealistic
and unrealistic approach to this pertinent matter. Joint physical custody essentially treats children
as property that should be similarly distributed between separated parents. The presumption or de
facto preference of joint physical custody consequently puts the interests of the parents before
the interests of the children. Therefore, it profoundly contradicts the standard allegedly used by
the courts to determine custody. To truly serve the best interests of a child, the court should
change its inclination to place children in these arrangements and adopt a rebuttable presumption
that sole physical custody is in the best interest of the child. The parent that the court believes
will better serve the best interests of the child should be given physical custody and the other
parent should be given regular, consistent contact through visitation.
This article will explore the unresolved and continuously challenging issue of child
custody. It will only directly address physical custody, but it should be noted that many of the
arguments and analysis also apply to legal custody. 11 Section II will investigate how courts have
8 A Latin expression that means “being such in effect though not formally recognized.” De Facto, MERRIAM-
WEBSTER, http://www.merriam-webster.com/dictionary/de%20facto (last visited October 20, 2016).
9 See DOUGLAS E. ABRAMS, NAOMI R. CAHN, CATHERINE J. ROSS & DAVID D. MEYER, CONTEMPORARY FAMILY
LAW 743-45, 754-755 (3d ed. 2012). There are two types of custody – physical and legal. Physical custody is the
actual physical care, responsibility and housing of a child. Legal custody is the decision-making power regarding a
child, including decisions about health, education, religious practices, etc. Id. Joint custody results when both
parents have shared and significant legal and/or physical custody of the child, whereas sole custody means one
parent has a majority of legal and/or physical custody of the child. See CAL. FAM. CODE § 3003-07 (West, Westlaw
through 2016 Legis. Sess.).
10 33 CAL. JUR. 3D FAM. LAW § 974 (2014).