Child Custody

AuthorJeffrey Lehman, Shirelle Phelps

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The care, control, and maintenance of a child, which a court may award to one of the parents following a DIVORCE or 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.

Divorced Parents

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 This flexibility is intended to allow for the correction of poor or outdated decisions, but it consequentially enables some parents to wage bitter custody battles that can last for years.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

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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.

Unmarried Parents

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...

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