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Child custody and legal guardianship are legal terms which are used to describe the legal and practical relationship between a parent or guardian and a child in that person's care, such as the right to make decisions on behalf of a child and the duty to care for and support the child.
Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as parental responsibility, "residence" and "contact" (also known as "visitation", "conservatorship" or "parenting time" in the United States) have superseded the concepts of "custody" and "access" in some member nations. Instead of a parent having "custody" of or "access" to a child, a child is now said to "reside" or have "contact" with a parent.
Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment, and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.
Family law proceedings that involve issues of residence and contact often generate the most acrimonious disputes. While most parents cooperate when it comes to sharing their children and resort to mediation to settle a dispute, not all do. For those that engage in litigation, there seem to be few limits. Court filings quickly fill with mutual accusations by one parent against the other, including sexual, physical, and emotional abuse, brain-washing, sabotage, and manipulation. Custody battles are not in the child's best interest and are often used by an angry parent in order to control his/her former partner.
In some places, courts and legal professionals are beginning to use the term parenting schedule instead of custody and visitation. The new terminology eliminates the distinction between custodial and noncustodial parents, and also attempts to build upon the best interests of the children by crafting schedules that meet the developmental needs of the children. For example, younger children need shorter, more frequent time with parents, whereas older children and teenagers may demand less frequent shifts yet longer blocks of time with each parent.
Forum shopping to gain advantage occurs both between nations and where laws and practices differ between areas within a nation, The Hague Convention seeks to avoid this, also in the United States of America, the Uniform Child Custody Jurisdiction and Enforcement Act was adopted by all 50 states, family law courts were forced to defer jurisdiction to the home state.
As the roles of children have changed over the past couple of centuries from economic assets to individuals, so has the role of mothers and fathers in who would provide the best care for the child. Many courts and judges lean more towards the maternal figure when there is a trial for custody of a child. According to Family Change and Time Allocation in American Families study done at UCLA, women allocate about 13.9 hours a week to child care while men allocate about 7 hours a week. Additionally, according to the Current Population Survey, in 2013, custodial mothers were more likely to have child support agreements (52.3 percent) comparative to custodial fathers (31.4 percent).
Women’s and father’s rights activists often become involved in matters of child custody since the issue of equal parenting is controversial, most of the time combining the interests of the child with those of the mothers or fathers. Women’s rights activists are concerned about “family violence, recognizing primary caregiving, and inequities associated with awarding legal joint custody without a corresponding responsibility for child care involvement”. Father’s rights activists are more concerned about their “disenfranchisement from children’s lives, the importance of parent-child attachment, combating parental alienation, and access enforcement”. Courts cannot determine an individual child’s best interests with certainty, and judges are “forced to rely on their own interpretations of children’s interests, and idiosyncratic biases and subjective value-based judgments, including gender bias”. Judges are currently using the ‘best interest of the child’ standard that was made to consider the interests of the child before the mothers and fathers, including the child’s mental, emotional, physical, religious, and social needs.
Child poverty, lack of resources, and women’s economic dependence on men all remain pressing issues that are not effectively noted during the custody trials.
Physical custody involves the day-to-day care of a child and establishes where a child will live. If a parent has physical custody of a child, that parent's home will normally be the legal residence (domicile) of the minor child. In custody cases, the schedule for which parent provides lodging and care for the child is defined by a court-ordered custody schedule (also known as a "parenting plan" or "parenting schedule").
Forms of physical custody include,
- Alternating custody, an arrangement whereby the child or children live for an extended period of time with one parent and an alternate amount of time with the other parent. This type of arrangement is also referred to as Divided custody.
- Shared custody, an arrangement whereby the child/children live for an extended period of time with one parent, and then for a similar amount of time with the other parent. Opposite to alternating custody, both parents retain authority over the child or children.
- Bird's nest custody, an arrangement whereby the parents go back and forth from a residence in which the child/children reside, placing the burden of upheaval and movement on the parents rather than the child or children.
- Joint custody, an arrangement whereby both parents share physical custody. (la garde conjointe in French)
- Sole custody (la garde exclusive in French), an arrangement whereby only one parent has physical custody of the child or children.
- Split custody (la garde divisée in French), an arrangement whereby one parent has full-time custody over some children, and the other parent has full custody over the other children.
- Third-party custody, an arrangement whereby the children do not remain with either biological parent, and are placed under the custody of a third person.
Joint physical custody involves a court order that awards custody of a child to both parties. In joint custody, both parents are custodial parents and neither parent is a non-custodial parent; in other words, the child has two custodial parents.
If a child has legal residence with both parents, the parents share "joint physical custody" and each parent is said to be a "custodial parent". Thus, in joint physical custody, neither parent is said to be a "non-custodial parent." In some jurisdictions the term "visitation" is no longer used in joint custody cases, but is instead used only for sole custody orders.
In some jurisdictions, "joint physical custody" creates a presumption of "equal shared parenting". However, in most states, joint physical custody only creates an obligation to provide each of the parents with "significant periods" of physical custody so as to assure the child of "frequent and continuing contact" with both parents. Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.
Many jurisdictions recognize two forms of joint custody: joint physical custody, and joint legal custody. In joint legal custody, both parents share the ability to have access to educational, health, and other records, and have equal decision-making status where the welfare of the child is concerned.
In joint physical custody, which would include joint physical care, actual lodging and care of the child is shared according to a court-ordered custody schedule (also known as a parenting plan or parenting schedule). Other terms may be used instead of visitation, such as "time share" or "parenting time". In some states joint physical custody creates a presumption of equal shared parenting, however in most states, joint physical custody creates an obligation to provide each of the parents with "significant periods" of physical custody so as to assure the child of "frequent and continuing contact" with both parents. For example, U.S. states such as Alabama, California, and Texas do not necessarily require joint custody orders to result in substantially equal parenting time, whereas states such as Arizona, Georgia, and Louisiana do require joint custody orders to result in substantially equal parenting time where feasible. Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.
It is important to note that joint physical custody and joint legal custody are different aspects of custody, and determination is often made separately in many states' divorce courts. E.g., it is possible to have joint legal custody, but for one parent to have sole physical custody In some states this is referred to as Custodial Parent and Non-Custodial Parent.
Also, where there is joint physical custody, terms of art such as "primary custodial parent" and "primary residence" have no legal meaning other than for determining tax status, and both parents are still custodial parents.
Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. Physical custody involves the day-to-day care of a child and establishes where a child will live. A parent with physical custody has the right to have his/her child live with him/her. If a child lives with only one parent, that parent has sole physical custody and is said to be the custodial parent. The other parent is said to be the non-custodial parent, and may have visitation rights or visitation with his/her child.
Usually the parent who is believed to value child quality more than the other is the one granted sole custody, leaving the high-valuation parent with the best incentives.
A custodial parent is a parent who is given physical and/or legal custody of a child by court order.
A child-custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. Where the child will live with both parents, joint physical custody is ordered, and both parents are custodial parents. Where the child will only live with one of the parents, sole physical custody is ordered, and the parent with which the child lives is the custodial parent, the other parent is the non-custodial parent.
A non-custodial parent is a parent who does not have physical and/or legal custody of his/her child by court order.
A child-custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. Where the child will only live with one of the parents, sole physical custody is ordered, and the parent with which the child lives is the custodial parent, the other parent is the noncustodial parent. Note, however, where the child will live with both parents, joint physical custody is ordered, and both parent are custodial parents.
Legal custody involves the division of rights between the parents to make important life decisions relating to their minor children. Such decisions may include choice of a child's school, choice of physician, whether the child should attend therapy and with what therapist, and decisions relating to medical and orthodontic treatment.
Legal custody may be joint, in which case both parents share decision-making rights, or sole, in which case one parent is vested with the rights to make those key decisions without regard to the contrary wishes of the other parent.
The "best interest" ruleEdit
In the context of cases regarding custody, the "best interest" rule suggests that all legal decisions made to accommodate the child are made with the goal of ensuring a child's happiness, security and overall well being. There are many different factors that go into the decision that is made in a child's best interest, which include: the child's health, environment and social interests, the relationship each parent has with the child, and the ability of each parent to address the needs of the child.
Problems with the "best interest" ruleEdit
The “best interest” rule has been considered to be a standard in determining child custody for the most recent 40 years in history. Although it has been so widely favored amongst legal systems, there are some deficiencies to the concept. Robert Mnookin, an American lawyer, author, and a Professor of Law at Harvard Law School, claimed that the best interest rule is indeterminate. It is considered to be a broad and vague set of guidelines that only leads to increased conflict amongst the parents instead of promoting cooperation that would actually lead to the best interest of the child being met. Some of these problems specifically include:
- The current test for best interest generates high costs, which can impose on both the court and opposing parties.
- The verifiability of the best interest standard is hard to achieve. The privacy of family life makes assessing the evidence provided difficult. The best interests standard only worsens the problem, in which both parties are encouraged to introduce evidence of the quality of their parenting (which also promotes trying to disprove the opposing party’s capabilities of taking the child into custody).
- In an example of divorce, both parties are experiencing high levels of stress, which could make for a poor basis for assessing family behaviors and relationships.
In order to better analyze the “best interest” of children, several experiments were conducted to observe the opinions of children themselves. Children of divorce were found to want equal time with both of their parents. Studies conducted by Wallerstein, Lewis and Blakeslee (2002) show that children from all age ranges indicate that equal or shared parenting is of their best interest 93 percent of the time. Several other studies were able to produce similar results, including Smart (2002), Fabricus and Hall (2003), Parkinson, and Cashmore and Single (2003). As a result, there has been a push to allow for joint custody of children in the most recent years, which strives to best meet the interests of the children and most evidently favors a gender neutral stance on the custody issue. However, the decision is highly situational, for joint custody can only be achieved in the absence of certain exceptions. For example, history of domestic violence found from either parent can most certainly trump the possibility of joint custody for a child.
Each parent has a responsibility under the Australian Family Law Act for their child/ren. In cases of separation or dysfunction between two parents the parental responsibility doesn't change.
In the case of divorce or separation of parents many hurdles can fall in the way regarding the custody of their children, deciding who will be the custodial parent and so forth. In Australia when parents can't come to an agreement which meets both of their needs when it comes to the custody of their child/ren cases are taken to court which happens in more scenarios than expected. When parents can't agree on these arrangements and take matters to court, the court makes orders about parental responsibilities, they have the power to approve and make consent orders.
Looking at the history of child custody demonstrates how the views of children and the relationship between husbands and wives have changed over time. The view of children has changed from economic assets to individuals with their own interests. Fathers were also once seen as the head of the household compared to today, when fathers and mothers have more equal standing in the care of their children.
The colonial era and early republic: 1630-1830Edit
During this time period, custodial issues arose with occasions other than divorce such as the death of the father or both parents, inability of parents to care for the children, or with situations involving illegitimate children. Children at the time were seen as economic assets with labor value. In addition to this, the only other important consideration in determining custody was the ability of the adults to supervise and raise the child. Widows would lose their children because they would not be able to support them. These children would be taken from the mother and given to another family that would support the child in return for the child’s labor services. Otherwise, fathers were seen as the head of the household and had complete custody rights to children.
The nineteenth centuryEdit
The view of children as servants to their fathers and economic assets began to change in the nineteenth century. Children were seen to have interests of their own that were often associated with the care of a nurturing mother. The women’s movement of the time also fought for women’s right to child custody in their campaign. Judges eventually began to favor the “best interests of the child,” which, especially for young and female children, was associated with mothers. Maternal presumption was judicially developed through legislature such as the “Tender Years Doctrine” that presumed that children should be placed with their mothers in custody debates. Granting custody to the father was seen “to hold nature in contempt, and snatch helpless, puling infancy from the bosom of an affectionate mother, and place it in the coarse hands of the father” when the mother was “the softest and safest nurse of infancy”. This maternal presumption continued for over a hundred years. The only exception to maternal presumption was if the mother was considered to be “unfit.” Most often, this occurred when women had committed adultery or left their husband.
The early twentieth centuryEdit
By the early twentieth century, divorce cases became more common, and custody disputed simultaneously became an issue that affected many families. With the changing attitudes of the Roaring 20’s, a woman’s sexual conduct no longer prevented her from receiving custody for her children. The double standard on sexual conduct of fathers and mothers was removed. The new rule according to Keezer on the Law of Marriage and Divorce stated that “Where the children are of tender years, other things being equal, the mother is preferred as their custodian, and this more especially in the case of female children, and this though she may have been guilty of delinquencies in the past but there is no evidence that she was delinquent at the time of determining the matter by the court.”
The late twentieth and early twenty-first centuriesEdit
In the late twentieth and early twenty-first centuries, divorce rates increased dramatically. Due to the nature of divorce, the rules governing child custody became increasingly difficult to determine. It was at this time that the idea of mothers being favored to gain custody of children in the event of a divorce was challenged. “The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide”, a New York court stated in 1973. It was at this time that the basis of the “best interest rule” was changed to address many aspects of the child’s care in order to promote gender neutrality in decisions regarding custody. These aspects include, but are not limited to, the child’s mental, emotional, physical, religious, and social needs. All children have the right to services that prevent them from physical or psychological harm. This means that when assessing the best interest of the child, it is not only important to assess the parents who are fighting for custody, but also the environments in which the child would be placed under the custody of either parent. In a situation where neither parent would be deemed an appropriate caretaker for a child, custody would be given to a foster care center.
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- "Changes in Custody". DC.gov - Child Support Services Division. Washintgon D.C. Retrieved 3 October 2017.
- Detrick, Sharon (1999). A Commentary on the United Nations Convention on the Rights of the Child. Martinus Nijhoff Publishers. p. 176. ISBN 9041112294. Retrieved 3 October 2017.
- "UNHCR Guidelines on Determining the Best Interests of the Child" (PDF). UNHCR. United Nations. May 2008. Retrieved 3 October 2017.
- Crouch, John (October 1999). "International Child Custody Cases". GPSolo. Retrieved 3 October 2017.
- Brooks, Barry J. (September 2014). "The Interstate Child: UCCJEA & UIFSA" (PDF). WICSEC. Western Interstate Child Support Enforcement Council. Retrieved 3 October 2017.
- Bianchi, Suzanne (November 2010). "Family Change and Time Allocation in American Families" (PDF). Focus on Workplace Flexibility.
- Bureau, US Census. "New Custodial Mothers and Fathers and Their Child Support Report". www.census.gov. Retrieved 2016-05-17.
- Kruk, Edward (2011). "A Model Equal Parental Responsibility Presumption in Contested Child Custody". The American Journal of Family Therapy.
- Crowley, Joceplyn (Fall 2009). "Taking Custody of Motherhood: Fathers' Rights Activists and the Politics of Parenting". Women Studies Quarterly. JSTOR 27740591.
- Carol, B.S. (1 April 1976). "Who owns the child? Divorce and child custody decisions in middle-class families". Social Problems. 23 (4): 505–515. Retrieved 3 October 2017.
- See The Determination of Child Custody in the USA  written by Joan B. Kelly, Ph.D. for Stanford University
- See the document published by the Canadian government here. The document is also available for download here
- See, e.g., "California Family Code, Sec. 3000-3007". Retrieved 19 September 2017.
- "Basics of Custody & Visitation Orders". California Courts. State of California. Retrieved 9 May 2017.
- Minnesota Presumptive Joint Physical Custody Group Report under House File 1262 (2008) Appendix B "State Definitions of Joint Physical Custody"
- See e.g., In re Marriage of Rose and Richardson (App. 2 Dist. 2002) 102 Cal.App.4th 941. Moreover, several courts have also stated, "The term `primary physical custody' has no legal meaning." (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759 citing Brody, Whealon, and Ruisi; see also In re Marriage of Richardson, 102 Cal.App.4th 941, 945, fn. 2; In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 714
- "Section 30-3-151". Legislature.state.al.us. Retrieved 2012-01-09.
- "Laws of New York". Public.leginfo.state.ny.us. Retrieved 2012-01-09.
- "Sole custody". Wex. Cornell Law School. Retrieved 3 October 2017.
- Rasul, Imran (2006-02-01). "The Economics of Child Custody". Economica. 73 (289): 1–25. doi:10.1111/j.1468-0335.2006.00445.x. ISSN 1468-0335.
- Uniform Child-Custody Jurisdiction and Enforcement Act(1997), Article 1, Section 102(3).
- Larson, Aaron (11 October 2016). "What is Child Custody". ExpertLaw. Retrieved 3 October 2017.
- Dieringer, Jennifer K.; Elsen, Susan R.; Goldenhersh, Stephanie E. (2008). "Child Custody" (PDF). Massachusetts Legal Services. Retrieved 3 October 2017.
- "Establishing Custody". June 2016. Retrieved 3 January 2018.
- Scott, E; Emery, R (January 2014). "Gender Politics and Child Custody: The Puzzling Persistence of the Best-Interests Standard". Law and Contemporary Problems. Retrieved May 5, 2016.
- J., Wallerstein; Lewis, J; Blakeslee, S (2002). "The unexpected legacy of divorce. A 25-year landmark study" (PDF). Psychoanalytic Psychology. Retrieved May 5, 2016.
- Kruk, Edward (2013). The Equal Parent Presumption: Social Justice in the Legal Determination of Parenting After Divorce. Montreal [Quebec]: MQUP. 2013. ISBN 9780773542914.
- "If you can't agree on parenting arrangements". Family Court of Australia. 3 May 2016. Retrieved 3 October 2017.
- "Introduction to Child Custody: Opposing Viewpoints." Child Custody. Ed. Dedria Bryfonski. Detroit: Greenhaven Press, 2011. Opposing Viewpoints. Opposing Viewpoints in Context. Web. 5 May 2016.
- MASON, MARY ANN. "Divorce and Custody." Encyclopedia of Children and Childhood: In History and Society. Ed. Paula S. Fass. Vol. 1. New York: Macmillan Reference USA, 2004. 276-279. Gale Virtual Reference Library. Web. 5 May 2016.
- Millar, Paul (2009). The Best Interests of Children: An Evidence-based Approach. Toronto: University of Toronto Press, Scholarly Publishing Division.
- "Tender Years Doctrine." West's Encyclopedia of American Law. Ed. Shirelle Phelps and Jeffrey Lehman. 2nd ed. Vol. 9. Detroit: Gale, 2005. 457-458. Gale Virtual Reference Library. Web. 5 May 2016.
- Estrada, R; Marksamer, J (March 2006). "The legal rights of LGBT youth in state custody: what child welfare and juvenile justice professionals need to know". Child Welfare. Retrieved May 5, 2016.