27. Child Custody
Because of the importance of the laws regarding child custody, all fifty states and the District of Columbia have adopted the Uniform Child Custody Act.
Prior to the twentieth century, it was standard that the father would take sole custody of the children upon divorce. In the twentieth century, however, it became common practice to award custody of children “of tender years” to the mother. It is now most common to award custody to both parents at the same time, in an arrangement known as “joint custody,” under which custody of the children is divided into legal and physical custody, with both parents sharing responsibility for the children simultaneously. However, joint custody does not necessarily mean equal custody. Rather, it merely means custody co-exists between parents with the physical arrangements coordinated in the best interests of the children. All but six states recognize the joint custody arrangement in child custody matters. Eight states, apparently feeling the need to remove the children from the pressures of having to make difficult and emotional decisions, do not consider the wishes of the children when awarding custody. However, it is safe to say that judges will never completely ignore children’s wishes in considering custody matters, just as they will not make them bear the brunt of the responsibility for a decision when answering the objections of a parent. In the majority of states listed as not taking into account the child’s wishes, the statute also reads that the decision regarding placement of the child must be based on what is in the “best interests” of the child.
Until ten years ago, only a few states recognized a grandparent’s desire to visit his or her grandchildren as a right. Now, all except the District of Columbia have statutes recognizing visitation rights of grandparents. In an ironic, perhaps even cruel twist of legal fate, many of these statutes have been held unconstitutional by the courts, but have not yet been taken off the books.
|Table 27: Child Custody|
|State||Code Section||Year Uniform Child Custody Act Adopted||Joint Custody||Grandparent Visitation||Child’s Wishes Considered|
|ALABAMA||30-3-1 to 200||1980||Yes, §30-3-150||Yes, §30-3-4.1||Yes|
|ALASKA||25.24.150||1977||Yes, §25.20.060 “shared”||Yes, §25.24.150||Yes|
|ARIZONA||25-401, et seq.||1996||Yes, §25-403||Yes, §25-409||Yes|
|ARKANSAS||9-13-101, et seq.||1979||Yes||Yes, §9-13-103||No|
|CALIFORNIA||Fam. 3400, 3000, et seq.||1973||Yes, Fam. 3080 presumption||Yes, Fam. 3100(a), 3102, 3103, 3104||Yes|
|COLORADO||14-10-123||1973||No, repealed §126.96.36.199||Yes, §19-1-117||Yes|
|CONNECTICUT||46b-56 et seq.||1978||Yes §46b-56a||Yes, 46b-59||Yes|
|DELAWARE||Tit. 13 §§721, et seq.||1976||Yes, Tit. 13 §§727, 728||Yes, Tit. 13 §728||Yes|
|DISTRICT OF COLUMBIA||16-911(a)(5); 16-914||1983||Yes, 16-911 (a)(5)||No||Yes|
|FLORIDA||61.13||1977||Yes, §61.13(2)(b)2 “shared”||Yes, §61.13(2)(c),(6),(7)||Yes|
|GEORGIA||19-9-1, et seq.||1978||Yes, §19-9-3(a)(5)||Yes, §19-9-3(d)||Yes|
|HAWAII||571-46||1973||Yes, §571-46.1||Yes, §571-46.3||Yes|
|IDAHO||32-717||1977||Yes, §32-717B||Yes, §32-719||Yes|
|ILLINOIS||750 ILCS 5/601, 602, 607||1979||Yes, 750 ILCS 5/602.1||Yes, 750 ILCS 5/ 607(b)-(e)||Yes|
|INDIANA||31-17-1-1 et seq.||1977||Yes, §31-17-2-13||Yes, §31-17-5-1, et seq.||Yes|
|IOWA||598.41||1977||Yes, §598.41(2)||Yes, §598.35||Yes|
|KANSAS||60-1610||1978||Yes, §60.1610(a)(4)(A)||Yes, §§38-129; 60.1616(b)||Yes|
|KENTUCKY||403.270, 405.021||1980||Yes, § 403.270(5)||Yes, §405.021||Yes|
|LOUISIANA||Civ. Art. 131; Rev. Stat. §9:331, et seq., §9:355.12||1978||Yes, Civ. Art. 131. 9:335||Yes, limited, Rev. Stat. 9:344||Yes|
|MAINE||Tit. 19-A§1651– 1654||1979||Yes, Tit. 19-A §1651||Yes, Tit. 19-A §1801 et seq.||Yes|
|MARYLAND||Fam. §5-203, 9-102||1957||Yes, §5-203(d)(2)||Yes, §9-102||No; 9-103 Child 16 yrs. old may petition for change of custody|
|MASSACHUSETTS||208§28, 209C §10||1983||Yes, 208§31; 209C§10||Yes, Ch. 119 §39D||No|
|MICHIGAN||722.21 et seq.||1976||Yes, §722.26(a)||Yes, §722.27(b)||Yes|
|MINNESOTA||518.155 et seq.||1977||Yes, §518.17 subd. 2||Yes, 518.175, §257C.08||Yes|
|MISSISSIPPI||93-5-23, et seq.||1982||Yes, §93-5-24||Yes, §93-16-1, et seq.||No|
|MISSOURI||452.375||1978||Yes, §452.375||Yes, §452.402||Yes|
|State||Code Section||Year Uniform Child Custody Act Adopted||Joint Custody||Grandparent Visitation||Child’s Wishes Considered|
|MONTANA||40-4-211 et seq.||1977||Yes, §40-4-212 “parenting plan”||Yes, §40-9-102||Yes|
|NEBRASKA||42-364||1979||Yes, §42-364(5)||Yes, §43-1802||Yes|
|NEVADA||125.480||1979||Yes, §125.465, 480.490||Yes, §125C.050||Yes|
|NEW HAMPSHIRE||461-A:1 et seq.||1979||Yes||Yes, §461-A:13||Yes|
|NEW JERSEY||§9:2-1 et seq.||1979||Yes, §9: 2-4(a)||Yes, §9-2-7.1||Yes|
|NEW MEXICO||40-4-9||1981||Yes, §40-4-9.1||Yes, §40-9-2 to 4||Yes|
|NEW YORK||Dom. Rel. §240||1977||Yes, Dom. Rel. §240||Yes, Dom. Rel. §240(1)||Yes|
|NORTH CAROLINA||50-11.2 et seq.||1979||Yes, §50-13.2||Yes, §50-13.2(b1)||Yes|
|NORTH DAKOTA||14-09-06 et seq.||1969||No||Yes, §14-09-05.1||Yes|
|OHIO||3109.04, 3105.21||1977||Yes, §3109.04(A)||Yes, §3109.051||Yes|
|OKLAHOMA||Tit. 43 §112||1980||Yes, 43§112||Yes, 10§5||Yes|
|OREGON||107.105||1973||Yes, §§107.105(a), 169||Yes, §109.119||No|
|PENNSYLVANIA||Tit. 23 §5301||1980||Yes, Tit. 23 §5304 “Shared”||Yes, Tit. 23 §§5311, 5303, 5312, 5313||Yes|
|RHODE ISLAND||15-5-16||1978||No||Yes, §§15-5-24.1 to 24.3||No|
|SOUTH CAROLINA||20-3-160||1981||No||Yes, § 20-7-420(33)||No|
|SOUTH DAKOTA||25-4-45||1978||Yes, §25-5-7.1||Yes, §§25-4-52||Yes|
|TENNESSEE||36-6-101, 102||1979||Yes, §36-6-101(a)||Yes, §36-6-306||Yes|
|TEXAS||Fam. 153. 005 et seq.||1983||Yes, Fam. §153.003 Joint Managing Conservator||Yes, Fam. 153.433||Yes|
|UTAH||30-3-10, 30-3-5||1980||Yes, §§30-3-10.1, et seq.||Yes, §30-5-2||Yes|
|VERMONT||Tit. 15 §665||1979||Yes, Tit. 15 §665(a)||Yes, 15§1011||No|
|VIRGINIA||20-107.2, 20-124.1 et seq.||1979||Yes, §§20-124.2(B)||Yes, §20-124.1 & §16.1-241||Yes|
|WASHINGTON||26.09.050; 26.10.100 et seq.||1979||No||Yes, §26.09.240||Yes|
|WEST VIRGINIA||48-9-101 et seq.||1981||Yes, 48-9-207||Yes, §48-10-101, et seq.||Yes|
|WISCONSIN||767.41||1975||Yes, §767.41(1)(b)||Yes, §767.43, 44||Yes|
|WYOMING||20-2-201||1973||Yes, 20-2-201(d)||Yes, 20-7-101||Yes|
Child custody is the term used by most legal systems to describe the bundle of rights and responsibilities that parents have regarding their biological or adopted children under the age, usually, of eighteen. Custody includes the right to have the child live with the parents and to make decisions about the health, welfare, and lifestyle of the child.
Issues about custody arise in three distinct contexts: when government proposes to interfere with parental custody in an intact family; when parents live separately and a decision about custody must be made between them; and when third parties seek custody in preference to parents.
These custody issues arise throughout the world, and there is widespread agreement on how to treat them in the law of different legal systems, particularly countries whose legal structures are based on Western concepts. Consequently, the focus of the discussion in this entry is on the law of the United States as representative of the law internationally.
In most Western countries, parents in an intact family make decisions for the children in their custody with relatively little interference from government. Western law accords great deference to family autonomy and privacy. When governmental interference does occur, it is focused on and initiated by concern about harm to children.
Abuse and neglect situations are the most important areas in which government interferes with parental custody. Most jurisdictions authorize an agency, often a juvenile court, to remove children from the custody of their parents if parents fail to meet minimal societal norms of parenting. Although the laws differ considerably from state to state and country to country, they typically authorize intervention because the child is physically or sexually abused or because the parent fails to provide necessary care, food, clothing, medical care, or shelter so that the health of the child is endangered (Clark 1988).
In the United States allegations of parental misconduct are processed by the juvenile court. Unlike other courts, the juvenile court is charged with investigating and evaluating the charges for the purpose of initially providing services to the family so the child remains in the home if possible. These treatment and preventive services may interfere with parental custodial decision making by requiring certain conduct or providing supervision, but they do not remove the child from the residential custody of the parents.
If parental failure continues in spite of limited state intervention, the court, after a hearing, may order the child removed from the home and custody transferred to a public or licensed private social agency to provide care and treatment of the child. Although the legal process is a transfer of custody to an agency, the actual physical care of the child is then placed with foster parents (Wald 1976).
A transfer of custody by a juvenile court is a limited type of custody. It means that the physical care of the child is removed from the parental residence and decisions about the daily care of the child are made by the agency or by the foster parents; the child's parents, however, retain the right to make major decisions, such as decisions about religious training, surgery or other significant medical treatment, or consent to adoption by a new set of parents. The term used to describe the right to make these major decisions is that of parental rights.
The purpose of removing a child from the custody of parents in a juvenile court proceeding is to protect and provide for the child, with the ultimate objective of returning the child to a parental home that is adequate to meet at least minimal parenting requirements. Therefore, in addition to providing care for the child, the state is required by juvenile court statutes to attempt to rehabilitate the parents so they can adequately care for the child.
Parents Who Live Separately
The concept of child custody receives its major attention in the law when parents live separately. In these situations, it is necessary to determine what living arrangements will be made for the children and how parents will exercise their custodial rights and responsibilities. Although the most common situation in which this occurs is when parents divorce, and the family dissolves as an entity, the issue of parental custodial rights between the parents of children born outside of marriage is growing in importance.
Custody between unmarried parents. Changes in family patterns are greater in some countries than in others, but throughout the world, increasing numbers of children are born to parents who are not married to each other and who may not even live together. In those cases, the custodial rights of the father are dependent, first of all, on the establishment of paternity. Historically, even after paternity was established, the mother had a superior right to custody of the child. Today, there appears to be a trend—at least in the United States and many European countries—to apply the same rules to custody disputes between unmarried parents as between married parents, particularly in cases where the unmarried father has lived with and cared for the child. However, even in those jurisdictions that accord rights to unmarried fathers, the one who has never lived with the child or established a parent-child relationship in some other way will find his custody rights to be much more limited than those of the mother.
Types of custody. When parents do not live together, the possible custodial arrangements available can be described as sole custody, split custody, joint legal custody, and joint legal and physical custody.
Sole custody means that the child resides with the parent awarded sole custody, and that parent has authority to make decisions for the child on lifestyle issues, such as education, religion, medical treatment, and general welfare. The other parent has the right of visitation but limited authority. Historically, this was the only kind of custodial arrangement provided by the law when parents separated. It continues to be the most common custodial form and, in some countries, the only form.
Split custody is really a form of sole custody, with the sole custody of the children divided between the parents; each parent has sole custody of one or more of the children. A very small number of custody arrangements involve split custody.
Joint custody is a relatively new custody form, dating from the 1970s. Although the exact meaning of joint custody is not clear, the term usually refers to two types of custodial arrangements. One form that has become popular is known as joint legal custody. In joint legal custody, the decision-making aspect of custody is separated from the physical care aspect. Both parents exercise decision-making authority for the child, but the child resides with one parent, usually the mother. Joint legal custody with physical custody to one parent, usually the mother, is the most common form of joint custody.
The other type of joint custody is joint legal and physical custody, where the parents share decision-making authority, and the child resides in both households. This arrangement is sometimes referred to as dual residence. The amount of time the child spends may be equally divided between parental homes, or the child may spend a majority of time with one parent and a lesser amount with the other parent.
Interest in joint custody as a parenting arrangement is most widespread in the United States, Canada, and the countries of Western Europe. As parenting roles change in those areas and fathers assume more custodial duties in intact families, shared time or dual residence seems to grow in popularity. One study in the United States found that, over a twelve-year period from 1980 to 1992, shared physical custody increased from 2.2 percent to 14.2 percent of the cases (Melli, Brown, and Cancian 1997).
Standards for awarding custody. The universal rule that guides the courts in deciding which parent should have custody is the best interests of the child. Although historically the father had a superior right to custody of his children and in some societies still has that right, the best interests of the child has become the polestar in custody decisions in most countries. The best interests of the child are frequently equated with mothers' custody, particularly for young children. However, in recent years, the preference for mothers has begun to disappear formally from the law. In the United States it has been abolished by statute or case law in the wake of concerns about gender equity. Since then, the assessment of what is in the best interests of the child has been greatly influenced by Beyond the Best Interests of the Child (Goldstein, Freud, and Solnit 1979), a book that stressed the importance of the relationships, particularly the psychological ties that children have with their parents.
Application of the best interests of the child criterion implies that the court's decision will provide the very best possible solution for the child. Unfortunately, as numerous critics have pointed out, obtaining the best possible solution is more illusory than real. Human knowledge is too limited and problematic to give clear guidance when making decisions that will be affected by unpredictable future events. In addition, the courts often lack the time and staff to gather sufficient information with which to determine the best possible solution (Erlanger, Chambliss, and Melli 1987; Melli 1993; Mnookin 1975). Scholars have also expressed concern that the lack of predictability on what constitutes the best interests of the child encourages litigation—a result that is universally regarded as undesirable (Mnookin and Kornhauser 1979). Considerable attention has been devoted to searching for some limiting preference that would reflect the best interests of most children. In the United States, the influential American Law Institute has recommended that custodial responsibility be allocated in rough proportion to the share each parent assumed before the divorce (Bartlett 1999).
Regardless of the standard applied, the great majority of children in single-parent families live with their mothers. Most studies show mother custody at about 70 to 80 percent, with father custody, split custody, and shared custody accounting for the rest (Maccoby and Mnookin 1993; Melli, Brown, and Cancian 1997).
The role of the court. A custody arrangement is made by an order of the court as part of the divorce proceeding. However, in the great majority of cases, the parents, not the court, make the actual decision. Most estimates are that 95 percent of the custody orders are based on parental agreement. One study in California found that only 3.5 percent of the cases required a decision by the court; the rest were arranged by the parents themselves or, if the parents were in disagreement, were negotiated and settled with the aid of their lawyers (Maccoby and Mnookin 1993).
Unfortunately, those few cases that are litigated are often high-conflict ones that may seriously harm the children involved (Elrod and Ramsay 2001).
The role of the child. Given the importance of a custody determination to a child, several issues arise as to the role of the child in such a proceeding. Most judges view the child's preference as relevant to a custody decision (Scott, Reppucci, and Aber 1988). The weight to be given to the child's wishes usually depends on the child's age and maturity of judgment.
A related issue is whether a child has a right to be represented in the custody proceedings. This issue recognizes the concern that custody litigation may lose sight of the best interests of the child. Hostile parents and their lawyers may fail to inform courts about issues important to the well-being of the child. The U.N. Convention on the Rights of the Child (1989) provides in Article 12 that states should assure a child the right to be heard in custody proceedings either directly or through a representative.
The role of mediation. When parents are in conflict about the custodial arrangements, there is substantial agreement that the traditional dispute resolution process of the law, litigation, is not suited for the problem. The most frequently suggested alternative is mediation (Milne and Folberg 1988). The research on mediation is very limited, but it appears to result in more user satisfaction than do litigation experiences (Pearson and Thoennes 1988). However, its use is controversial. Critics claim that mediation results in undesirable shared custody arrangements (Bruch 1988), and feminists express concern about unfair pressures on mothers in the process (Grillo 1991).
Modification of custody. Custody arrangements are not final; they may be changed by the parties or modified by the court. One study found that over a period of three-and-a-half years, there was a fair amount of change in the residential arrangements of the children. Mother sole custody was the most stable arrangement, with 81 percent of the children who lived with their mothers at the time of the first interview still living there at the time of the third interview. The other two types of physical custody arrangements, father custody and dual residence, were much less stable, with 51 percent of the children in those arrangements making at least one change (Maccoby and Mnookin (1993).
In addition to informal changes made by the parties themselves (these are often not ratified by a change in the formal court order), the court may modify the custody award because it is never considered a final order and is, therefore, subject to modification. This nonfinality for custody orders reflects concern about the need to protect children from harmful circumstances, but it conflicts with an equally important policy favoring stability for children. For this reason there has been a clear trend in the law toward making changes difficult, discouraging parents from relitigating custody decisions. For example, the consideration of a custodial change may be limited to situations where it can be shown that there has been a change in circumstances since the date of the custody decree, or where evidence not considered by the court in granting the decree is now presented for the first time. Some jurisdictions are even more restrictive, prohibiting the consideration of requests for changes for a set period of time, such as two years after the entry of the original order, unless the existing physical custody arrangement seriously endangers the child.
Once the set of conditions for considering a custody change has been established, the issue is whether a change in custody is in the best interests of the child. Again, concern that custodial change is not good for the child is an important consideration. The usual presumption is that staying in the present placement is in the child's best interest. Apart from concerns about changing children's living situations, courts consider the same kinds of issues on modification as they do in making the original order.
Joint physical custody poses particular problems of modification because any change in parental circumstances can easily upset a complicated dual residence arrangement. Therefore, courts are more willing to consider requests to change dual residence arrangements. Usually, for example, a prohibition against change in custody for the first two years after the original order is not applied to joint physical custody situations.
Other Custody Issues between Parents Who Live Separately
Parental child abduction. Parental child abduction is an international child custody problem of major proportions. The problem of child abduction may arise in a variety of situations. A parent dissatisfied with a custody decision may take the child to another country. Often that parent may be a national of the country to which he takes the child. Also common is when a noncustodial parent who lives in another country may refuse to return a child after authorized visitation in that country.
Historically, the parent violating the custody order often prevailed: a child custody order is not final and, therefore, may be modified. Because jurisdiction is based on the presence of the child, the court where the noncustodial parent lives has jurisdiction to redetermine the issue of custody. Sometimes that court, based on incomplete information provided by the absconding parent or applying standards different from those of the jurisdiction where custody between the parents was determined originally, has changed the custodial determination to favor the absconding parent.
In 1988, to remedy this situation, the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) was completed. It has been ratified by more than sixty nations. It is modeled after United States legislation that requires a state to honor the custody award of the child's home state. The Hague Convention is actively used, but the numbers of children abducted to foreign countries continues to grow, partly because of the increase in binational marriages.
One of the major criticisms of the Hague Convention is that it does not protect mothers who are victims of domestic violence who flee a country for safety (Sapone 2000). Changes to remedy this problem are being considered (Weiner 2000).
Visitation. When one parent has sole physical custody, which is the situation in the majority of the cases, the other parent is entitled to spend time with the child during what is usually called visitation. Visitation is usually regarded as a right of the noncustodial parent to which that parent is entitled unless visitation would seriously harm the child. Therefore, a custodial parent who objects to visitation by the noncustodial parent has the burden of showing that the child would be harmed by contact with the child's other parent.
Difficult situations are presented to those who must make decisions when the conflict between the parents is so great that the children are drawn into it and object to seeing a parent because they have, in effect, taken the view of the parent with whom they live. However, even when children object to seeing their noncustodial parent, most courts will order visitation.
The prevailing rule that the noncustodial parent has a right to see and spend time with the child, absent a showing of some type of harm to the child, reflects a public policy recognizing that continued contact with both parents is desirable. It has been argued that stability and a positive relationship with one parent are the most important factors in the development of a child and that parental conflict over the noncustodial parent's time with the child is so divisive that it ought to be controlled by the custodial parent (Goldstein, Freud, and Solnit 1979). Nevertheless, the weight of social science research supports the value of continued association with both parents (Maccoby et al. 1993; Kelly and Lamb 2000). Continued contact with a noncustodial parent is important to a child in terms of both social and financial support. Evidence suggests, for example, that noncustodial parents who visit their children more frequently also pay more child support (Anditti 1991; Dudley 1991; Seltzer, Schaeffer, and Charng 1989).
Enforcement of visitation. When the custodial parent interferes with or prevents visitation by the noncustodial parent, the principal remedy of the law is contempt of court with a fine or imprisonment. Such a severe remedy against a custodial parent is rarely used. In the United States, some courts and legislatures have provided for the reduction or withholding of child support in response to visitation infractions (Czapanskiy 1989). Unfortunately, such a remedy primarily affects the child.
A child custody dispute may arise between a parent and a nonparent in a variety of contexts. One type of case that has received considerable comment involves the same-gender partner of the child's parent. Other situations involve a stepparent, probably the most common case of a nonparent seeking custody; a relative, including a grandparent; or a third party with whom a parent has placed the child during an extended period. In all of these cases, the child may have lived with the nonparent for most of the child's life, and the non-parent may have been the primary caretaker of the child, forming a very close psychological parent-child bond.
In these types of custodial disputes, the non-parent seeking custody is faced with the traditional rule that the parent is entitled to custody unless that parent is found to be unfit (Buser 1991; Clark 1988). The effect of giving primacy to the interests of the biological parent when the other choice is a nonparent means that the best interests of the child may be disregarded.
Legal scholars have puzzled over the persistence of a rule that seems to place the child's best interests after those of the parent. Some scholars speculate that these cases reflect a concern about the importance of blood ties and a belief that the child's biological parent will in the long run be the most successful caretaker for the child. In addition, courts often show sympathy for a biological parent who has, perhaps after a period of years, now realized how important the child is (Chambers 1990). Finally, in the case of the same-gender partner, the court may express some of the societal ambivalence toward that family form.
Custody for nonparents is an area in which the law is developing and in which changing values and attitudes may result in changes in the law. The American Law Institute's Principles of Family Dissolution treat nonparents who have lived with and cared for a child as de facto parents and authorizes the award of custody to them.
Nonparents often seek another custodially related right, that of visitation. Here they have been more successful, perhaps because one of the major nonparent groups interested in securing visitation rights has been grandparents, who have shown themselves to be very effective lobbyists (Clark 1988). In the United States, although all states have adopted statutes authorizing courts to grant visitation rights—if in the best interests of the child—to grandparents and often to other nonparents, in Troxell v. Granville (2000) the United States Supreme Court struck down a broadly worded Washington statute authorizing the court to grand visitation to "any person." Although the Supreme Court indicated that this did not affect other non-parent visitation statutes, some states have held their statutes to be unconstitutional under Troxell (Bobroff 2000).
See also:Childcare; Childhood; Children's Rights; Divorce: Effects on Children; Divorce Mediation; Family Law; Gay Parents; Grandparents' Rights; Guardianship; In-Law Relationships; Lesbian Parents; Stepfamilies
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marygold s. melli
The care, control, and maintenance of a child, which a court may award to one of the parents following adivorceor separation proceeding.
Under most circumstances, state laws provide that biological parents make all decisions that are involved in rearing their child—such as residence, education, health care, and religious upbringing. Parents are not required to secure the legal right to make these decisions if they are married and are listed on the child's birth certificate. However, if there is disagreement about which parent has the right to make these decisions, or if government officials believe that a parent is unfit to make the decisions well, then family courts or juvenile courts will determine custody.
District and state courts base their decisions on state laws, which vary greatly among states. If a case challenges the constitutionality of a state law or—in rare instances—a state's jurisdiction (i.e., its right to decide the case), then the U.S. Supreme Court may issue an opinion.
When custody must be spelled out because of a couple's divorce, the custody arrangement usually becomes part of the divorce decree. The decree names the parent with whom the child will live, how visitation will be handled, and who will provide financial support. Courts consider a custody award to be subject to change until the child comes of age, and in most states proof of a "change in circumstances" may overturn an earlier award. This flexibility is intended to allow for the correction of poor or outdated decisions, but it consequentially enables some parents to wage bitter custody battles that can last for years.
In a typical divorce involving at least one child, permanent physical custody is awarded to the parent with whom the child will live most of the time. Usually, the custodial parent shares joint legal custody with the noncustodial parent, meaning that the custodial parent must inform and consult with the noncustodial parent about the child's education, health care, and other concerns. In such situations, courts may order visitation, sometimes called temporary custody, between the child and the noncustodial parent. A clear schedule with dates and times may be written into the order, or a court may simply state that visitation should be reasonable. child support is a common requirement and is paid by the noncustodial parent to the custodial parent as assistance in raising the child.
The typical arrangement is subject to some exceptions. Some courts allow parents to retain joint physical custody, in which the child spends equal time with both parents. In California, the Family Code, for example, establishes a presumption that joint custody is in the child's best interest, thus placing joint custody as a preferred option when courts make custody determinations in that state. Cal. Fam. Code. Ann. § 3040 (West 1995). Advocates of joint custody argue that it lessens the feelings of losing a parent that children may experience after a divorce, and that it is fair to both parents. Many courts, on the other hand, resist ordering joint custody if either parent does not want it, due to the high degree of cooperation it requires, especially when the children involved are young or if the parents live a great distance apart, such as in separate states.
Split custody is an arrangement in which the parents divide custody of their children, with each parent being awarded physical custody of one or more children. In general, courts try not to separate siblings when awarding custody.
Where a child's parents were never married, most states provide that the child's biological mother has sole physical custody unless the biological father takes steps to have himself considered for custody. Those steps include obtaining a court's finding of paternity and filing a petition for custody. In some states, this is a bifurcated (i.e., two-step) process; in others, the two steps are combined. An unwed father usually cannot win custody from a mother who is a good parent, but he may have priority over other relatives, foster parents, or strangers who want to adopt his child.
The government must provide a child's unwed parents with the opportunity to step forward if it is seeking custody. In Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), the U.S. Supreme Court held that under the equal protection clause of the fourteenth amendment, an unwed father was entitled to a hearing to determine his fitness as a parent before the state could obtain custody of his children following their mother's death.
Criteria for Custody Awards
Much debate about child custody has focused upon the criteria that the courts use in awarding permanent physical custody in cases where two biological parents disagree. Noncustodial parents of both genders have long charged that judges' decision making is arbitrary and that it does not focus on the child. In response to this criticism, many states have adopted a standard that places primary emphasis on the best interests of the child. The challenge for courts since the 1990s has been to interpret the standard objectively in the absence of meaningful guidelines.
Policies of the past offer little guidance. Before the late 1800s, fathers had sole rights to custody, because it was closely tied to inheritance and property law. Mothers had no such rights. Beginning in the nineteenth century, courts began to award custody of young boys and of girls of all ages solely to mothers on the presumption that mothers are inherently better caretakers of young children.
Until 1970, most states encouraged or allowed this maternal preference, also called the tender years doctrine, and mothers almost always received custody. Eventually, many state courts found this preference to be unconstitutional, and gender-neutral custody statutes had replaced maternal-preference standards in 45 states by 1990. A catalyst for this change was Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (197]), a noncustody case in which the U.S. Supreme Court ruled that the Equal Protection Clause of the Fourteenth Amendment prevents courts from basing opinions on generalizations about either gender.
A 1994 american bar association study of divorces in Utah showed that after maternal preference in divorce cases was declared unconstitutional in that state in 1986, the number of mothers who received sole custody decreased, the number of joint legal custody awards increased, and the number of specific-visitation schedules increased. The researchers concluded that although the proportion of fathers who received sole custody did not necessarily go up, the net result was more involvement by fathers after divorce.
No straightforward criterion has replaced the simple—although unconstitutional—presumption that children belong with one gender or the other. The decisions that result are often inconsistent, and many participants view them as arbitrary. Ultimately, the judge decides the child's future, and few guidelines are provided to ensure that the decision is objective.
Nevertheless, courts have instituted some mechanisms to determine a child's best interests. guardians ad litem (caretakers "for the lawsuit") or friends are sometimes appointed to represent the child's interests and to advocate in court on the child's behalf. Custody evaluations may be ordered, in which court-services personnel visit each parent's home and evaluate each parent's plan for caring for the child. The fact that one parent has been the child's primary caretaker is often considered but is not enough to guarantee a custody award.
Changing Custody Awards
Standards for changing custody awards are similarly vague, although most states' criteria allow courts to modify custody only when the circumstances of the custodial parent or of the children—not of the noncustodial parent—have changed. A 1993 Stanford University study of petitions to modify custody found that these awards were highly inconsistent, and it attributed them in many cases to personal gender biases held by judges.
Social Issues: Sexual Orientation and Race
Social issues are sometimes slow to affect custody decisions. Homosexual parents still pose dilemmas for judges. Although in many cases homosexual parents have won or retained custody, the Virginia Supreme Court in 1995 reinstated a trial court order awarding custody of a boy to his grandmother because the lesbian mother's sexual orientation was deemed potentially harmful to the boy (Bottoms v. Bottoms, 249 Va. 410, 457 S.E. 2d 102). Similarly, the Alabama Supreme Court in Ex parte H.H., 830 So. 2d 21 (Ala. 2002) refused to return custody of a mother's children to her, despite the mother's assertions that the father, the custodial parent, had abused the children. Although the majority in the decision did not address the fact that the mother was a lesbian, a concurrence written by the chief judge of the court suggested that the court should consider homosexuals as presumptively unfit to have custody of minor children. In contrast to these types of decisions, many courts have been more willing to grant custody to gay and lesbian parents when the parents are a same-sex couple. See also gay and lesbian rights.
Although the U.S. Supreme Court ruled in 1984 that removing custody from a white child's mother because of her marriage to a black man would be discriminatory (Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421), a Tennessee court in 1986 removed custody from a white mother who was living with a black man. In that case, when one of the children's guardians died two years later, the mother, who had by then married the man, was awarded custody of one of her children (Smith v. Smith, 1989 WL 73229 (Tenn. App).
adoption can provide courts with another source of custody disputes. Most state laws require that both birth parents give consent before their child can be adopted. Such a law was at issue in a custody battle over Jessica DeBoer, who was born in Iowa in 1991 and adopted by a Michigan couple. DeBoer's birth mother later married DeBoer's birth father, and they sought and won custody of DeBoer in Iowa, based on the father's never having consented to the adoption. The adoptive parents then won in the Michigan courts, based on an analysis of the child's best interests. On appeal, the Michigan Supreme Court reversed, declaring that under federal law, Iowa had jurisdiction in this case, and that unless a child's birth parents are unfit, an unrelated person may not retain custody. The U.S. Supreme Court agreed, in DeBoer by Darrow v. DeBoer, 509 U.S. 1301, 114 S. Ct. 1, 125 L. Ed. 2d 755 (1993), and Jessica was returned to her birth parents.
Family ties are often a compelling factor for judges even when birth relatives other than parents are involved. For example, the Minnesota Supreme Court ruled in 1992 in Matter of Welfare of D. L., 486 N.W.2d 375 (Minn.), that the biological grandparents of Baby D., a three-yearold African-American, should be granted custody, rather than the white foster parents who had raised her from birth. The case convinced the Minnesota Legislature to change a law (M. S. A. § 259. 28, subd. 2) providing for same-race preference in adoptions, but race was not the deciding factor in the case: The court based its decision on reuniting Baby D. with her birth relatives and her siblings, of whom the grandparents also had custody.
Critics of removing children from parents and from parental figures to whom they have become attached argue that the rupture is too difficult to overcome and that children suffer from imperfect child-custody laws. The National Conference of Commissioners on Uniform State Laws approved in 1994 a model adoption statute, which was designed to reduce the chances that custody will be changed after children have become attached to parent figures. The model statute provides guidelines for birth parents and adoptive parents to follow before an adoption in order to prevent custody battles afterward.
In the 1990s, courts appeared to place more importance on child-caretaker attachment and in some cases even denied custody to birth parents in order to uphold this attachment. A Florida judge ruled in 1993 that 14-year-old Kimberly Mays could choose not to see her birth parents, from whom she had been separated at birth by a hospital error (Twigg v. Mays, 1993 WL 330624 [Fla. Cir. Ct.]). The decision was based on the length of time she had spent with her nonbiological family and her attachment to it.
In 1978, the U.S. Supreme Court ruled that the adoption of a child by the child's stepfather did not violate the due process rights of the child's unwed biological father. In Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978), the Court decided that the adoption was in the best interests of the child, and wrote that because that particular biological father had participated very little in rearing the child, he did not have the same rights under the Equal Protection Clause that a more involved father would have.
Terminating Parental Rights
Owing in part to a national surge in reports of child abuse and neglect in the 1980s and 1990s, courts and society faced questions of whether abusive or dangerously neglectful parents should retain custody of their own children. It is the government's role to step in when a child is not being safely cared for, and if parents are judged unfit, the local social-services department may seek to terminate their parental rights and to free the child for adoption or alternative care. A child may be placed in foster care while a custody case is pending.
Before removing a child from her or his parents, the state must produce "clear and convincing" evidence that terminating parental rights is the best option for the child. This was clarified in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). The case arose after a New York County social-services department successfully brought neglect proceedings in state court against the Santoskys, a couple with three children. The U.S. Supreme Court found that the state's standard—"a fair preponderance of evidence"—was too low for deciding something as important as a family's future.
Courts and Jurisdiction
Most custody decisions are made by family courts. However, where a juvenile court has found that a minor poses a threat to society if current custody arrangements continue, the juvenile court may turn over physical custody to the state. The court may simultaneously issue a so-called CHIPS petition, declaring the "child in need of protective services," if the current custodian is abusive or negligent.
Jurisdiction is an issue that has received much attention. A court has the power to settle a custody dispute if a child lives for at least six months in the location where the court has jurisdiction or if it is demonstrated that the court has the closest connection with the child. All states have adopted the Uniform Child Custody Jurisdiction Act, originally adopted in 1967, which provides that a state's court will not accept a custody case unless that state has original jurisdiction or the state with original jurisdiction relinquishes it. All states have adopted the original uniform law. This law was updated in 1997 with the passage of the Uniform Child Custody Jurisdiction and Enforcement Act, which added a number of provisions for the enforcement of child-custody orders from other states. As of 2003, more than 30 states, including the District of Columbia, had adopted the new law, and several others were considering its adoption. The Hague Convention Treaty provides similar reciprocity between nations that are parties to it (implemented at 42 U.S.C.A. §§ 11601–11610 [Supp. 1993]).
A parent's interstate move sometimes blurs jurisdictional lines. For this reason, courts may restrict the geographic area in which a parent may live as part of the custody order, or they may deny a subsequent request for permission to move if the move is viewed as an attempt to hinder the other parent's visitation.
Parental kidnapping occurs when one parent deprives the other of his or her legal right to custody or visitation by illegally taking the child out of the jurisdiction. It is outlawed by the federal Parental Kidnapping Prevention Act (28 U.S.C.A. § 1738A [Supp. 1993]), which applies the full faith and credit clause of the U.S. Constitution to child-custody cases, meaning that each state must abide by custody decisions made by another state's courts if the other state would be bound by those decisions. The law was enacted to respond to cases in which one parent leaves the state that has jurisdiction; however, in 1998 the U.S. Supreme Court ruled in Thompson v. Thompson, 484 U.S. 174, 108 S. Ct. 513, 98 L. Ed. 2d 512, that the existence of two different state-custody decrees is not, itself, a reason for federal involvement under this law.
The Parental Kidnapping Prevention Act often works in concert with state laws, such as state adoptions of the Uniform Child Custody Jurisdiction and Enforcement Act, in order to facilitate the return of a child to the state that has proper jurisdiction. Many of the custody provisions in the federal law are similar to those in the corresponding state laws.
Termination of Custody
Most types of custody end when the child is emancipated (i.e., considered a legal adult) by becoming self-supporting, by marrying, or by reaching the age of majority as specified by state law. Not until then does family court lose its power to determine custody.
Bahr, Stephen J., et al. 1994. "Trends in Child Custody Awards: Has the Removal of Maternal Preference Made a Difference?" Family Law Quarterly (summer).
Horne, Jennifer. 1993. "The Brady Bunch and Other Fictions: How Courts Decide Child Custody Disputes Involving Remarried Parents." Stanford Law Review (July).