142 Children’s Legal Rights Journal [Vol. 37: 1 2017]
Furthermore, the reason for separation and divorce may stem from differences in
parenting style and beliefs. 103 The primary caretaker presumption or factor fails to recognize that
the family’s pre-established arrangement may not serve the needs of the child as well as a newly
proposed arrangement. Though children need stability and consistency, 104 the approach wrongly
presumes that continuing the past routine is the most favorable option available to the child in
question. 105 Those who advocate for the primary caretaker approach contend that the most
reliable indicator of a good future for the child is maintaining the same caretaking patterns. 106
However, the preceding habits and caretaking arrangement should merely be a starting point for
analysis and consideration during a child custody evaluation and examination, not a presumption
of what is best for children in the future.
B. The Problems with Joint Custody
Joint custody is the fairest arrangement for parents. 107 If parents share joint custody,
each parent has responsibilities and aspects of control over their children. 108 Children maintain
frequent stays with each parent, and grow close bonds with each as well. 109 In theory, joint
custody could be the best option for most separated and divorced families. 110 In reality, it equates
103 See Adriana Barton, Disagreements over childrearing are growing cause of divorce, THE GLOBE AND MAIL
(Sept. 13, 2010), http://www.theglobeandmail.com/life/disagreements-over-childrearing-are-growing-cause-of-
divorce/article1380006/ (parents argue about their children’s care in many ways, including child-rearing
philosophies, limits, boundaries, appropriate discipline, technology usage.).
104 Philippa M. Eve, Mitchell K. Byrne & Cinzia R. Gagliardi, What is Good Parenting? The Perspectives of
Different Professionals, 52 FAM. CT. REV. 114, 120 (2014).
105 Gary Crippen, Stumbling Beyond Best Interests of the Child: Reexamining Child Custody Standard-Setting in the
Wake of Minnesota’s Four Year Experiment with the Primary Caretaker Preference, 75 MINN. L. REV. 427, 490
107 See generally Gerald W. Hardcastle, Joint Custody: A Family Court Judge’s Perspective, 32 FAM. L. Q. 201, 205
(1998) (to parents, joint custody may seem fair).
108 CAL. FAM. CODE § 3004 (West, Westlaw through 2016 Legis. Sess.).
109 Hardcastle, supra note 107, at 204, 209.