Is Dissomaster biased? It depends

Imagine a father seeking advice about custody and visitation and is told that as a status quo, the court is going to start with the premise that the mother will have primary physical custody and you, as the father, will have alternate weekends and some additional visitation time with the minor child, roughly 20%. Regardless of what the mother or father says or their rationale for or against it, you both start with that presumption. Father can try to argue for primary physical custody, and mother can try to argue for less visitation time, but you are both already arguing against a default presumption. Most, if not all, would find those starting presumptions inherently unfair and biased. Why should a father or mother be pigeonholed into any visitation plan without a single piece of testimony or evidence being presented?

Yet, when you open the Dissomaster computer program for calculating child and temporary spousal support, the settings automatically default to specific presumptions that need addressing. First, the default settings always show "Father" and "Mother." Secondly, the settings always default to Father having a 20% custodial timeshare and Mother having primary custody and the tax exemption. This raises two questions: Why is it still Father and Mother? Secondly, why do we presume that the child will live primarily with the mother and that the father will only have 20% custodial time?

Let's start with the first question. Why is the default still Father and Mother?

In 2018, the California Legislature passed AB 2684 to make the Family Code more gender neutral. One of the "primary purposes" of the act was to "Ensure that the parentage provisions of the Family Code treat same-sex parents equally, including the conclusive marital presumption of parentage in Section 7540 of the Family Code" and to "provide equal treatment to same-sex parents, transgender parents, and their children."

Prior to AB 2684, Section 7540 provided that "the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." (Emphasis added) The updated Section 7540 provides that "the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage." (Emphasis added) Similarly, Section 7540 was updated to replace the words husband, Father, and paternity with spouse, genetic parent, and parentage. AB 2684 was designed to bid farewell to the days of presumed fathers and usher in a new era of presumed parents. So why hasn't Dissomaster followed suit?

The Judicial Council approves Dissomaster for use in all California courts and has been used by California courts for over 20 years. Dissomaster claims to be "designed by attorneys to follow the guidelines set out in the California Family Law Code." Dissomaster is regularly updated to reflect changes in the tax code. If Dissomaster is approved for use in all California courts, and it is meant to reflect the Family Code, it seems odd that Dissomaster should not be updated to treat same-sex parents equally to mirror the changes to the Family Code that were made over five years ago.

Moving onto the second question. Why is the default setting 20% for Father?

In 2019, the Legislature amended Family Code Section 3020 to add the following language: "The Legislature finds and declares that it is the public policy of this state to ensure that the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative is not considered in determining the best interests of the child."

Having 20% for Father as the default setting every time you open Dissomaster contradicts the revised Section 3020. Not only does the default setting assume that the Father does not have primary physical custody of the child(ren), but it also assumes that the Father has 20%, which is not even a percentage that correlates to a standard custody schedule. The closest common schedule is alternate weekends plus one dinner per week, 21%. The only schedule that is exactly 20% is two extended weekends per month, but this is by no means common enough to be the default. In light of all this, at best, it is arbitrary to have the default as 20% for Father, and at worst, it is prejudicial and reinforces stereotypes the Legislature has explicitly decided to remedy.

This does not suggest that the above inputs on Dissomaster are not modifiable; they clearly are by merely highlighting the respective input box and making a change. However, with a simple update, most of the issues presented herein would be easily fixed. Such as changing Father and Mother to Petitioner and Respondent. Petitioner and Respondent are gender neutral and eliminate the need to identify the parties by name if they were a same-sex couple. Or perhaps the default inputs of Father and Mother could be changed to a drop-down selection menu similar to the tax filing status box, which opens when you attempt to change "Filing status." However, the California Legislature has already clearly indicated that we should be aiming for gender neutrality - and this was all over five years ago, so Dissomaster is overdue for a change.

Dissomaster should also change 20% to 50% as the default custodial time. Is 50% the most common custodial timeshare? Probably not - but neither is 20%. While 50% may be less common, why not split it cleanly down the middle? A handful of different schedules are specifically designed around a 50%-timeshare. Also, there is nothing prejudicial about assuming that both parents will have equal custodial time.

Scott J. Nord is a judge in the Los Angeles County Superior Court, and Nicole You is a judicial extern and 3L at USC School of Law.