Custody of Children

• Pages: 187-213
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

187

Chapter 9

CUSTODY OF CHILDREN

The legal framework of child custody involves many subsidiary

issues. Most people think of cu stody in the context of two birth

parents competing for physical custody of their child or children after

obtaining a valid divorce. But even here there are issues of sole or

joint legal custody, sole or joint physical custody, visitation

arrangements, possible attemp ts by the cu stodial parent to relocate

in the future, supervised visitation, and litigation over parental

alienation. The process becomes more complicated if one of the adults

caring for a child is not a birth parent, but instead is a stepparent or

cohabiting partner seeking to assert parental prerogatives.

Litigation over ch ild custody is likely to increase even more.

With the proliferation of nonmarital cohabitation, and possibilities

increasingly available under assisted reproductive tech nology,

persons able to seek an d assert parental rights have expanded

significantly. What are the rights of each appropriate adult, when do

these rights commence, and when do they end? Answers to these

questions begin with jurisdiction.

Jurisdiction to make a custody determination is divisible from

that necessary to obtain a divorce and order spousal or child support.

And then, once jurisdiction is validly established, how may the

court’s custody order be enforced from one jurisdiction to another? If

the order needs to be modified, how and where must this be

accomplished? These issues were add ressed in Chapter 5, in the

context of divisible divorce. But it bears repeating that any dispute

over custody must commence with proper jurisdiction. This involves

consideration of the Uniform Child Custody Jurisdiction and

Enforcement Act (UCCJEA), adopted in every state. In addition,

there is a federal concern over custody, evidenced by such statutes as

the Parental Kidnapping Preve ntion Act (PKPA), the International

Child Abduction Remedies Act, and the International Parental

Kidnapping Crime Act of 1993. These federal enactments also

acknowledge the international aspect of child custody. Thus, the

enactment of the International Child Abduction Remedies Act in

1988 implemented the Hague Conv ention on the Civil Aspects of

International Child A bductions by the United States Congress. As

America becomes more pluralistic these international acts are

increasingly important.

Compounding child custody is the fact that individuals

identified as parents enjoy a fundamental rig ht to the care, custody,

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CUSTODY OF CHILDREN

Ch. 9

and control of their children. The United States Supreme Court has

characterized a parent’s right to raise her child as “perhaps the oldest

of the fundamental liberty interests.”

1

This parental presumption

will be discussed in greater detail in Chapter 10, in connection with

termination of parental rights. Grounded in the Fourteenth

Amendment of the United States Constitution, the parent is

presumed to be the be st person to make de cisions reg arding his or

her child. Because this right is fundamental, it may be rebutted only

with clear and convincing evidence, or what is often termed

“extraordinary circumstances.”

2

Thus, in any custody or visitation

dispute between a parent and a non-parent, the parent’s presumptive

rights will overrule any claim by the non-parent, unless the parental

right may be rebutted by clear and convincing evidence.

3

Parental status may become complicated. In an age of surrogacy

contracts, paternity and maternity through estoppel, de facto

parenthood, and nonmarital contracts between persons of the same

and opposite sex, parenthood is no longer determined solely by

biology or statutory adoption. Parenthood may come about through

many means, but these added means increase the opportunities for

preliminary litigation.

As we shall discuss, infra, betwe en two parents, in a parent-

versus-parent construct, there are no presumptions favoring one

parent over the other, and the test may become simply what is in the

best interest of the child. But the majority of states prefer parents to

negotiate a parenting plan between themselves, with the assistance

of state resources. Absent a parenting plan, state s adopt what is

considered to be in the best interest of the child, but deciding what is

in the best interest of the child varies among the states. Overall,

states forbid gender preferences and racial classifications or

conjectures on the part of judges, which will be identified through

written findings.

Between a parent and a non-p arent, discussed infra, the

parental presumption applies. If the non-parent is able to overcome

the parental presumption then the non-parent may petition for

custody based on what is in the best interest of the child o n a lev el

playing field.

4

Finally, also discussed, infra, a state may obtain

custody ove r the objection of a parent by initially demonstrating a

preponderance of the evidence that state custody is in the best

interest of the child, but then clear and convincing proof is required

for extended custody or for termination of parental rights.

1

Troxel v. Granville, 530 U.S. 57 (2000).

2

Id.

3

See, e.g., Id.; In re Guardianship of Phillip B., 139 Cal. App. 3d 407 (1983).

4

See, e.g., In re F.E.N., 542 S.W.3d 752 (Tex. Ct. App. 2018).