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Child custody is a
legal Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its boundari ...
term regarding '' guardianship'' which is used to describe the legal and practical relationship between a
parent A parent is a caregiver of the offspring in their own species. In humans, a parent is the caretaker of a child (where "child" refers to offspring, not necessarily age). A ''biological parent'' is a person whose gamete resulted in a child, a male ...

parent
or guardian and a child in that person's care. Child custody consists of ''legal custody'', which is the right to make decisions about the child, and ''physical custody'', which is the right and duty to house, provide and care for the child. Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving
divorce Divorce (also known as dissolution of marriage) is the optional process of terminating a marriage in Stockholm Marriage, also called matrimony or wedlock is a culturally and often legally recognized union between people calle ...

divorce
,
annulment Annulment is a legal procedure Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court comprises the rules by which a court hears and determines what happens in civil procedure, civil, lawsuit, criminal ...
, separation,
adoption Adoption is a process whereby a person assumes the parenting Parenting or child rearing promotes and supports the physical Physical may refer to: *Physical examination, a regular overall check-up with a doctor *Physical (album), ''Physical'' ...

adoption
or parental death. In most
jurisdiction Jurisdiction (from Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the ...
s child custody is determined in accordance with the
best interests of the child Best interests or best interests of the child is a child rights legal principle, principle, which derives from Article 3 of the UN Convention on the Rights of the Child, which says that “in all actions concerning children, whether undertaken by pu ...
standard. Following
ratification Ratification is a principal Principal may refer to: Title or rank * Principal (academia) The principal is the chief executive and the chief academic officer of a university A university ( la, universitas, 'a whole') is an educational insti ...

ratification
of the
United Nations The United Nations (UN) is an intergovernmental organization that aims to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be a centre for har ...

United Nations
Convention on the Rights of the Child The United Nations Convention on the Rights of the Child (commonly abbreviated as the CRC or UNCRC) is an international international human rights instruments, human rights treaty which sets out the civil, political, economic, social, health an ...

Convention on the Rights of the Child
in most countries, terms such as parental responsibility, "
residence A residence is a place (normally a building) used as a home A home, or domicile, is a space used as a permanent or semi-permanent residence for one or many Human, humans. It is a fully or semi sheltered space and can have both interior an ...
" and "
contact Contact may refer to: Interaction Physical interaction * Contact (geology)A geological contact is a boundary which separates one rock body from another. A contact can be formed during deposition, by the intrusion of magma, or through faulting ...
" (also known as "visitation", "conservatorship" or "parenting time" in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country in . It consists of 50 , a , five major , 326 , and some . At , it is the world's . The United States shares significan ...

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.


Legal custody

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, physician, medical treatments, orthodontic treatment, counseling,
psychotherapy Psychotherapy (also psychological therapy or talking therapy) is the use of methods, particularly when based on regular , to help a person change behavior, increase happiness, and overcome problems. Psychotherapy aims to improve an individual ...
and
religion Religion is a - of designated and practices, , s, s, , , , , or , that relates humanity to , , and elements; however, there is no scholarly consensus over what precisely constitutes a religion. Different religions may or may not contain v ...

religion
. Legal custody may be joint, in which case both parents share decision-making rights, or sole, in which case one parent has the rights to make key decisions without regard to the wishes of the other parent.


Physical custody

Physical custody establishes where a child lives and who decides day-to-day issues regarding the child. If a parent has physical custody of a child, that parent's home will normally be the child's legal residence ( domicile). The times during which parents provide lodging and care for the child is defined by a court-ordered custody ''parenting schedule'', also known as a ''
parenting plan A parenting plan is a child custody plan that is negotiated by parents, and which may be included in a marital separation agreement or final decree of divorce. Especially when a separation is acrimonious to begin with, specific agreements about w ...
''.


Forms

The different forms of physical custody include: *
Sole custody Sole custody is a child custody Child custody is a Law, legal term regarding ''legal guardian, guardianship'' which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custo ...
, an arrangement whereby only one parent has physical custody of the child. The other
non-custodial parent A noncustodial parent is a parent who does not have child custody, physical custody of his or her minor child as the result of a court order. When the child only lives with one parent, in a sole custody arrangement, then the parent with which the ch ...
would typically have regular
visitation Visitation may refer to: Law * Visitation (law) or contact, the right of a non-custodial parent to visit with their children * Prison visitation rights, the rules and conditions under which prisoners may have visitors Music * Visitation (Division ...
rights.Jennifer E. Sisk
Child custody laws
Encyclopedia of Children's Health.
*
Joint physical custody Shared parenting, shared residence, joint residence, shared custody or joint physical custody is a child custody arrangement after divorce or Marital separation, separation, in which both parents share the responsibility of raising their child, chi ...
, a
shared parenting Shared parenting, shared residence, joint residence, shared custody or joint physical custody is a child custody Child custody is a legal Law is a system of rules created and law enforcement, enforced through social or governmental institut ...
arrangement where both parents have the child for approximately equal amounts of time, and where both are custodial parents. *
Bird's nest custody Shared parenting, shared residence, joint residence, shared custody or joint physical custody is a child custody arrangement after divorce or Marital separation, separation, in which both parents share the responsibility of raising their child, chi ...
, a type of ''joint physical custody'' whereby the parents go back and forth from a residence in which the child always reside, placing the burden of upheaval and movement on the parents rather than the child. *
Split custody Split custody refers to a child custody arrangement in which one parent has sole custody of one or more children while the other parent has sole custody of the remaining siblings. Split custody is rare, as it is thought that it is in the best to ke ...
, an arrangement whereby one parent has sole custody over some children, and the other parent has sole custody over the remaining children. *
Alternating custody Alternating custody can have two different meanings. It is typically used when parents take turns having sole custody of a child based on a regular schedule, while the non-custodial parent has visitation rights. For example, the father may have sole ...
, an arrangement whereby the child lives 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. *
Third-party custody In some custody situations, it is possible that the child/children will not remain with either of their natural, biological, parents, but instead custody is awarded to a third person Generally speaking, third-party custody occurs when one of two op ...
, 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

''Joint physical custody'', or ''shared parenting'', means that the child lives with both parents for equal or approximately equal amounts of time. In joint custody, both parents are ''custodial parents'' and neither parent is a non-custodial parent.See, e.g., With joint physical custody, terms such as "primary custodial parent" and "primary residence" have no legal meaning other than for determining tax status.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 The term "
visitation Visitation may refer to: Law * Visitation (law) or contact, the right of a non-custodial parent to visit with their children * Prison visitation rights, the rules and conditions under which prisoners may have visitors Music * Visitation (Division ...
" is not used in joint physical custody cases, but only for sole custody orders. In joint physical custody, the 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''.


Sole custody

''Sole physical custody'' means that a child resides with only one parent, while the other parent may have
visitation Visitation may refer to: Law * Visitation (law) or contact, the right of a non-custodial parent to visit with their children * Prison visitation rights, the rules and conditions under which prisoners may have visitors Music * Visitation (Division ...
rights with his/her child. The former parent is the ''custodial parent'' while the latter is the ''non-custodial parent''.


Prevalence

Comparing 36 western countries in 2005/06,
Thoroddur Bjarnason Thoroddur Bjarnason is an Icelandic sociology, sociologist and professor at the University of Akureyri. He is most well known for his international comparative survey methodology, survey research on adolescents and their living and child custody, ...
studied the proportion of 11-15-year-old children living in different child custody arrangements. The percent of children living in intact families with both their mother and father were highest in Macedonia (93%), Turkey (89%), Croatia (89%) and Italy (89%), while it was lowest in the United States (60%), Romania (60%), Estonia (66%) and Latvia (67%). In the other anglophone countries, it was 70% in the United Kingdom, 71% in Canada and 82% in Ireland. Among the children who did not live with both their parents, the percent in a shared parenting versus sole custody arrangement was highest in Sweden (17%), Iceland (11%), Belgium (11%), Denmark (10%), Italy (9%) and Norway (9%). At 2% or less, it was lowest in Ukraine, Poland, Croatia, Turkey, the Netherlands and Romania. It was 5% in Ireland and the United States and 7% in Canada and the United Kingdom. Shared parenting is increasing in popularity, and by 2016/17, the percentage in Sweden had increased to 34% among the 6-12 year old age group and 23% among 13-18-year-old children.


Jurisdiction

A child custody case must be filed in a court that has jurisdiction over the child custody disputes. Jurisdiction normally arises from the presence of the children as legal residents of the nation or state where a custody case is filed. However, some nations may recognize jurisdiction based upon a child's citizenship even though the child resides in another country, or may allow a court to take jurisdiction over a child custody case either on a temporary or permanent basis based upon other factors.
Forum shopping Forum shopping is a colloquial Colloquialism or colloquial language is the linguistic style used for casual (informal) communication Communication (from Latin Latin (, or , ) is a classical language belonging to the Italic langua ...
may occur both between nations and, where laws and practices differ between areas, within a nation. If a plaintiff files a legal jurisdiction that the plaintiff believes to have more favorable laws than other possible jurisdictions, that plaintiff may be accused of forum shopping. The Hague Convention seeks to avoid this, also in the
United States of America The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

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.


The "best interest" rule

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" rule

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.


Economics

In an economic analysis, Imran Rasul has concluded that if one parent values child quality more than the other, the spouses prefer that parent to have sole custody, while joint custody is optimal for parents with relatively equal valuation of child quality. He has further concluded that "joint custody is more likely to be optimal when divorce costs fall, so that children retain contact with both parents" and that "this may improve child welfare".


Gender issues

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.


Australia

Each parent has a responsibility under the
Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

Australia
n ''
Family Law Act 1975 The ''Family Law Act 1975'', referred to as the FLA by legal practitioners, is an Act of the Australian Parliament. It has 15 parts and is the main Australian legislation dealing with divorce, parenting arrangements between separated parents (whe ...
'' for their children. The parental responsibility does not change in cases of separation or dysfunction between the two parents. 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 cannot come to an agreement which meets both of their needs when it comes to the custody of their child/ren cases are taken to the
Family Court of Australia The Family Court of Australia was a superior Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island ...
, which happens in more scenarios than expected. When parents cannot agree on these arrangements and take matters to court, the court makes orders about parental responsibilities, and have the power to approve and make consent orders.


Pakistan

In Pakistan, the Guardians and Wards Act, 1890 is the principal law that governs child custody. Pursuant to that statute and case law, the governing principle in child custody determinations, whether to a parent or third party, is the welfare of the minor.


United States

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: 1630-1830

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.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.


The nineteenth century

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 century

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 centuries

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. 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.Minnesota Presumptive Joint Physical Custody Group Report under House File 1262 (2008) Appendix B "State Definitions of Joint Physical Custody" Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.


See also

;By country or culture ;Other topics


References

{{Authority control Adoption parenting Juvenile law Divorce Family law Parenting Fathers' rights Mothers' rights