Is the Presumption Against Shared Custody Coming To An End?

by Andrea Richard, Esq.

Before November of 2017, Wyoming courts did not favor shared custody unless there was a good reason for such an arrangement. Eickbush vs. Eickbush, 2007 WY 179, ¶ 11, 171 P.3d 509, 512 (Wyo. 2007); Feaster vs. Feaster, 721 P.2d 1095, 1098 (Wyo. 1986). Wyoming courts have traditionally been concerned that shared custody arrangements can contain a measure of instability. Reavis vs. Reavis, 955 P.2d 428, 432 (Wyo. 1998).
However, a November 2017 opinion from the Wyoming Supreme Court may signal a change. In that decision, Ransom vs. Ransom, 2017 WY 132, ¶ 36 (Wyo. 2017), Chief Justice Burke wrote a specially concurring opinion, noting that “a presumption against shared custody is no longer appropriate.” The Chief Justice also noted that the presumption against shared custody may be out of date and that several states, that formerly recognized the presumption, have now rejected it.
Chief Justice Burke referenced an opinion from the Iowa Supreme Court. In that opinion, In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007), the Iowa Supreme Court noted that the “joint physical care issue must be examined in each case on the unique facts and not subject to cursory rejection based on a nearly irrebuttable presumption [against shared custody] found in our prior cases.” The Iowa Court noted that “[p]hysical care issues are not to be resolved based on perceived fairness to the spouses, but primarily upon what is best for the child. The objective of a physical care determination is to place the children in the environment most likely to bring them to health, both physically and mentally, and to social maturity.”
Relying, in part, on the analysis from the Iowa Supreme Court and Wyoming Statutes, Chief Justice Burke argues in his separate opinion that Wyoming should no longer presume that shared custody is contrary to the best interests of the children. Chief Justice Burke points to the language of Wyoming Statute § 20-2-201(d) (LexisNexis 2015) which provides that “[c]ustody shall be crafted to promote the best interests of the children, and may include any combination of joint, shared or sole custody.” Based on the specific statutory language and the compelling analysis from the Iowa opinion and elsewhere, Chief Justice Burke concluded that “shared custody should be considered on an equal footing[.]” Ransom, 2017 WY 132, ¶ 38.
We do not yet know whether the other members of the Court also believe that the presumption against shared custody should be changed. However, in a footnote, the majority noted that the Chief Justice’s special concurrence makes “a valid point that perhaps it is time for the Court to reconsider whether we should have a presumption against shared custody.” Ransom, 2017 WY 132, ¶ 16.
The majority left the question of whether the presumption against shared custody should be eliminated for another day as the issue was not briefed by the parties and deciding that point would not impact the outcome in Ransom. Id.
For now, Wyoming’s presumption against shared custody remains the law. The Ransom decision, and in particular the Chief Justice’s special concurrence, create the possibility that the Court will move in the direction of other states and reject the presumption against shared custody. Time will tell, but the Ransom decision may indicate that change is coming.