The term “child custody” refers to the legal and hands-on relationship between a parent and his or her child. Custody includes the parent’s right to raise, care for, and make decisions regarding the child. The natural state is for the child’s biological parents to make all decisions involving the child’s residence, healthcare, education, and religious upbringing. However, when couples separate, all of these issues may become contentious. When a child’s custody and upbringing are in dispute, the child custody laws and the court becomes involved. To explore this concept, consider the following child custody definition.
Definition of Child Custody
- A decision by the court as to which parent will have the care, custody, and control of a child. Custody may be assigned to one parent, or to both parents jointly.
History of Child Custody
As far back as ancient Roman law, children were viewed as property belonging to the father, who had the unilateral power to sell them, or enter them into slave labor. Mothers had no rights to their children, even if the father died. This possessive attitude continued through to 19th century English common law, in which fathers had the sole obligation to support, protect, and educate their children as they saw fit, and mothers had very limited access to their children in the event of a divorce.
Landmark British legislation in 1839 directed the courts to award to mothers custody of children under the age of seven, and to give mothers visitation rights for older children. The original goal of this “tender years doctrine” was to give over the care of children to the mother only until they were old enough to be returned to their father’s custody. It was, however, the first stepping stone to shared custodial rights.
In the early 1900s, thoughts on gender-based custody did an about-face, the courts determining that mothers were better suited to raise children. This was based in part on a Freudian theory on infant attachment and relationships, though it also took into account the more practical aspect of the father’s frequent absence as he worked to support the family.
In the 1960s, fathers began asserting their parental rights, and courts began considering “the child’s best interest” in determining issues of child custody and new child custody laws. From primary residency, to visitation, to decision-making authority, the American family court system has expanded and refined this system, placing a gender-neutral focus on what is in the child’s best interest.
Uniform Child Custody Jurisdiction and Enforcement Act
The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) was enacted in 1997 to combat the issue of parents filing custody actions in other states, in an attempt to get around the jurisdiction and orders in the child’s home state. The UCCJEA states that a child is under the jurisdiction of the court in the child’s home state. The child’s home state is defined as the state in which the child has lived since birth, or for six consecutive months immediately prior to the custody action. Other provisions of the Act outline how the child’s home jurisdiction is determined in other circumstances.
Types of Child Custody
Parents navigating the mine field of child custody laws often become confused, as there are many legal terms bandied about. For instance, legal and physical custody are separate issues, visitation, rights to attend a child’s functions, and even financial support are issues decided by the court in the event parents cannot agree. The court-ordered custody arrangement often becomes part of the divorce decree, though it may later be altered if there is a change in circumstances.
In all states, joint custody is preferred, as the courts feel that it is important for children to have contact with, and be parented by, both parents. Circumstances, however, may necessitate other arrangements. A child custody and support order includes which parent the child will live with, how visitation will occur, who gets to make critical decisions regarding the child, and who will provide financial support.
Legal custody is a separate issue from physical custody, as it has nothing to do with where the child lives, and everything to do with who has the right and obligation to make important decisions regarding the child’s care and upbringing. Legal custody entails making decisions about such issues as the child’s daily routine, schooling, daycare, healthcare, and religious upbringing. In most cases, parents share joint legal custody, which means they must consult one another regarding major decisions. If one parent makes a habit of making such decisions without consulting the other parent, he or she may have legal custody rights taken away.
In many cases, hostilities between the parents, or abuse on the part of one parent, makes such communication impossible, or is not in the children’s best interest. This is a situation in which sole legal custody may be granted to one parent, based on which parent is seen as being the most reasonable, and able to make the proper choices.
Physical custody refers to the day-to-day care of a child, and where the child will primarily live. Even when joint physical custody is ordered, primary physical custody usually resides with one parent (the “custodial parent”), and the other parent (the “non-custodial parent”) will get visitation rights.
- Joint Physical Custody is often worked out between the parents, according to their schedules, allowing the children to stay with the parent when he or she is available to take care of their needs. This is referred to as a “parenting plan.” In the event parents cannot agree, the court imposes a custody and visitation schedule. While the goal of joint custody is equally shared custody, reality has caused the courts to order “significant periods” of physical custody to ensure children have “frequent and continuing contact” with both parents.
- Sole Physical Custody may be ordered in cases in which one parent is seen to be unable to provide a healthy and stable living environment for the children. This may occur when one parent abuses drugs or alcohol, is actively engaged in a criminal lifestyle, or is violent or abusive towards the children or others. Sole physical custody may also be awarded to one parent when the other parent is seen to be keeping the children from, or alienating them against, that parent.
Example Custody Situations
Amicable Joint Custody Arrangement
When they get divorced, Marie and Edward decide to work out shared custody of their two children. Both parents work, but because Edward has moved across town, and Marie is staying in the family home, they decide the children will live primarily with their mother, where they can remain in their neighborhood school. The children will stay with their father every other weekend, as well as spending time with him two evenings a week until bedtime. Marie and Edward also share joint legal custody, consulting with one another to make decisions regarding the children.
Joint Physical/Sole Legal Custody
Candy and John have a turbulent divorce, and cannot agree on issues regarding their 3-year old son. John argues about every daycare provider Candy proposes, and when he has their son for visitation, he often fails to return him as scheduled. In addition, friends report hearing John tell their son “Mommy is mean,” and “Mommy is bad, she makes Daddy sad.” When Candy asks the court for a change in custody arrangements, the judge determines that John is uncooperative, likely to disobey the custody order, and is actively alienating the child against his mother. The court orders primary physical, and sole legal, custody to the mother, with the father having weekend visitation with strict orders to return the child on time.
Sole Custody/Supervised Visitation
When Helen and Zack divorce, Zack seeks sole custody of their daughter, stating Helen is an alcoholic, and leaving the little girl with her unsupervised would be dangerous. After speaking with the parents and the little girl, and after completing an investigation into the mother’s behavior, the court representative determines that the mother’s alcoholism indeed makes her unfit to care for the child. Zack is awarded sole legal and physical custody, and Helen is allowed to visit the little girl only at a supervising agency. The mother is ordered to attend AA meetings, or to enter rehab, after which she may apply for a change in custody status.
How to Get Custody of a Child
In situations in which the parents simply can’t agree on custody and visitation issues, they must go through the process of obtaining a court order. Most states use some form of alternative dispute resolution (“ADR”) or mediation to come up with a parenting plan before the matter is taken to the judge. During the ADR process, each parent submits a reasonable plan for custody and visitation to the mediator, who then sits down with both parents to work out an agreement.
If the parents cannot come to an agreement during this meeting, the mediator, who also meets privately with the children, creates a parenting plan that is in the best interests of the children. It is the mediator’s job to weed through heated arguments and allegations, as well as to determine whether one parent is trying to keep the children from the other for no valid reason. While the judge has some discretion, the mediator’s recommendation most often becomes the court order.
Common Considerations in Making a Custody Order
When a court is making an order for child custody and visitation, it must determine what is in the child’s best interest. To do this, the judge considers a number of factors, including:
- The length of time the child has been in the actual care of one parent or the other
- Any agreement reached by the parents regarding custody and residence of the child
- The child’s adjustment to home, school, daycare, and community
- Each parent’s ability and willingness to respect and promote the relationship between the child and the other parent
- Any allegation or evidence of spousal abuse
- Any allegation or evidence of child abuse, whether involving this child or any other
- Whether either parent is required to register as a sex offender, or resides with a person who is required to register as a sex offender
- Whether either parent has been convicted of abuse of any child, or resides with a person who has been convicted of child abuse
Common Ways to Sabotage Custody or Visitation
Divorce and child custody often become hot-button issues when any relationship ends. Letting anger toward the other spouse get in the way of the parent-child relationship is a sure way to lose custody, or to get an order for limited visitation. Common mistakes include:
- Alienation of Affection – occurs when one parent puts down or disparages the other parent, either directly to, or in the presence of the children. This also includes attempting to keep the children from the other parent.
- Physical Confrontations – engaging in physical contact with the other parent or children in anger instills fear, if not physical injury. Making physical contact with another person in anger is considered battery, and is illegal.
- Criticizing the Other Parent – criticizing the other parent to family members, friends, co-workers, case workers, or others is likely to get back to the other parent, the children, and the court. This may be seen as alienation of affection, or a sign of non-cooperation.
- Using Child Support as a Weapon – failing or refusing to pay child support because of custody and visitation disagreements not only shows contempt for a court order, but is likely to be seen as combativeness and non-cooperation.
- Denying Telephone Contact – keeping children from contacting the other parent by telephone during visitation is generally considered to be keeping the children from the other parent, and thus alienation.
- Removing Children from School – the removal of children from school or daycare without permission from, or notice to, the custodial parent triggers suspicions of non-cooperation or even risk of flight.
Related Legal Terms and Issues
- Alternative Dispute Resolution – The resolving of disputes by means other than litigation. In a family court environment, this refers to mediation of custody and visitation.
- Child Custody Mediation – The process by which a court-appointed mediator helps parents reach a custody and visitation arrangement that is in the best interests of the child.
- Allegation – An assertion or claim that someone has done something wrong or illegal, typically made without actual proof.
- Sex Offender – A person convicted of a crime involving sex, including rape, molestation, and production or distribution of child pornography.
Legal custody refers to the legal authority to make major decisions on behalf of your child. Examples of major decisions include where your child will go to school, what type of religious upbringing they will have (if any), and non-emergency medical decisions.What is the most important factor determining child custody? ›
The most basic part of the "best interests" standard is that custody decisions should serve the children's health, safety, and welfare. Judges will look at whether one or both parents are able to handle a child's special educational, medical, mental health, and other needs.What defines custody? ›
Custody is the state of physically holding or controlling a person or piece of property, or of having the right to do so. A person who has custody over property or another person often has affirmative duties to protect and care for those in their charge. In the law, custody is used in criminal and family law.What is the rule of child custody? ›
In case of a minor child, both the parents have an equal right over the child after divorce. If there is no mutual consent, the family courts decide who gets to keep the child and take his/her major life decisions.What is the purpose of custody? ›
A parent with custody of a child is responsible for the physical care of the child, including where the child lives and the daily decisions about how they are raised. You must have custody of a child to be involved in making the major decisions about a child's life such as their education, religion, and health care.How do courts decide on child custody? ›
The Court will make a decision based on what it thinks is best for your child rather than what is best for you or your ex-partner. In reaching that decision the Court will consider the statutory welfare checklist: The ascertainable wishes and feelings of your child, in light of his or her age and understanding and.What are the three main factors considered for custody placement? ›
Factors Judges Use When Deciding Custody
needs of the children. each parent's ability to meet the children's needs. relationship between the children and each parent.
- Prepare a parenting plan. ...
- Keep track of your parenting time. ...
- Maintain a journal to show you meet parenting duties. ...
- Keep a log of child-related expenses. ...
- Get reliable child care. ...
- Ask others to testify on your behalf. ...
- Show that you're willing to work with the other parent.
What custody is. Custody is the right to the physical care and control of a child. When unmarried parents separate and they cannot agree on who should have custody of the child, the court may have to decide who should have custody of any children.What is the difference between custody and possession? ›
The difference between custody and possession is that a possessor has complete dominion over the property while a custodian merely has the duty of care or supervision over the property.
- Don't Use the Subjoined Fill-In-The-Blank Declaration Forms. ...
- Be Thorough. ...
- Tell a Story. ...
- Show Rather Than Tell. ...
- Declarations Should Contain Firsthand Knowledge, Not Secondhand. ...
- Submit 3rd Party Supporting Declarations. ...
- Be Concise. ...
- Gather Lots of Supporting Documents.
He got custody of his son after the divorce.How do I write a personal statement for family court? ›
Write about facts, not what you perceive as motive. Child Focused: As with any statement, keep the wording child focused. Your statement and reasons for being in court should relate to your relationship with your child, not your past relationship with your ex-partner.How Fathers Can Win Child Custody? ›
If the mother is unable to care for the kid, the child will be given to the father. If the kid is 13 years old or older and shows a desire to live with his father, the court will give it to him. In the event that the mother has a bad reputation, which might harm the kid, the father is given custody.How can a mother win full custody? ›
In the event that the parents cannot agree on joint or non-joint guardianship, the court will decide who will have full custody of their child. In most cases, the court will ask both parents what they want if they cannot agree.Can a 7 year old decide which parent to live with? ›
At what age can a child choose who to live with? A child cannot legally decide who they want to live with until the age of 16 unless there is a child arrangement order in place that has been extended until they are 17 or 18 years old.What happens during custody? ›
When a person is charged with a crime and held in police custody they must be brought to the first available court for the court to decide whether they should continue to be held (remanded) in custody. If a defendant is remanded in custody they will be kept in prison and required to appear in court.Who does the child belong to? ›
Children belong first and foremost to their families headed by their parents, who, due to their uniquely intimate relationship with their children, are the ones with the most direct obligation and authority to care for them until they are sufficiently mature to direct their own lives.Why do woman always win custody? ›
Although each divorce case is unique (and should be treated that way), the main cause for this, in most cases, is the traditional notion and presumption that the mother is always better suited to take care of the children's emotional needs. In contrast, families only needed the father for financial contributions.What do courts look for in custody cases? ›
They will want to know what the child wants and how they feel. The child's emotional, physical and educational needs will be considered and how any changes in their circumstances will affect the child. The child's age, gender, characteristics and background will all be a factor in the decision process.
The judge is likely unless he or she considers that the evidence before the court suggests otherwise to take full account of the recommendations made by children's services and the guardian.How long does it take to get custody of a child? ›
There is no standard time frame and it can take between 6 to 12 months to achieve a final order. In most cases, it will take around six to eight weeks from when you first apply for the preliminary court hearing (step 4 above) to take place.What are the three main characteristics of a good parenting? ›
- Showing love. ...
- Providing support. ...
- Setting limits. ...
- Being a role model. ...
- Teaching responsibility. ...
- Providing a range of experiences. ...
- Showing respect.
The chain of custody documentation provides information regarding the collection, transportation, storage, and general handling of the electronic evidence.How do you answer questions in family court? ›
GIVE YOUR ANSWER DIRECTLY TO THE JUDGE
But it is the judge who is making the decision, so tilt your shoulders towards them or face them directly. Do not get into an argument or ask questions of your questioner. It will annoy the judge. It also looks like you are avoiding answering the question.
The court should consider whether there has been any domestic violence or harm to you or the child early on in the case. The court needs to think about whether or not the violence or harm affects the decision that the court has to make.What age can a child decide who to live with? ›
The child has to be at least 13 or 14 for their views to be considered strongly. Ultimately, the court will make a decision as to what is in the child's best interests. It won't take the child's view over and above any other considerations stipulated in the Children Act.Can a mother refuse access to the father? ›
When the parents of a child do not live together they can make informal agreements regarding access. If they cannot agree on terms they must seek a formal agreement from the courts. It's very unusual for a Court to deny the parent access.Can a father take a child from the mother? ›
An unmarried mother is automatically the sole guardian of a child born outside of marriage and has sole custody. However, it is not necessary for the father to have guardianship before he applies for access or custody. The father can apply for joint or sole custody.What is the difference between custody and ownership? ›
The main difference between ownership and possession is that possession is having physical custody or control of an object whereas ownership is a right by which something belongs to someone.
Most of the time you should not be kept in detention at the police station for more than 24 hours without being charged with an offence; however, if it is justified to assist their investigation, the police may obtain the authorisation from an officer of the rank of superintendent or above, to keep you for up to a ...Why would a mother not get custody? ›
A mother who is proven to have physically and or psychologically abused her children is highly likely to lose custody of her children. Examples of physical abuse include hitting, kicking, scratching, biting, burning, physical torture, sexual abuse, or any other type of injury inflicted on the child by the mother.What are the different types of custodial? ›
There are four main forms of child custody: legal custody, physical custody, joint custody, and sole custody.What is a custody relationship? ›
Legal custodial relationship means (i) a parent or other person having, or in the process of securing, legal custody of any individual or individuals with whom such parent or other person is domiciled and who have not attained the age of 18 years, or (ii) the designee of such parent or other person having, or in the ...What are the 3 types of co parenting? ›
Types of Co-parenting.
Researchers have identified three major types of post-divorce co-parental relationships: 1) parallel parenting, which is the most common (occurring more than 50% of the time), 2) conflicted co-parenting, and 3) cooperative co-parenting (both of which occur around 25% of the time).
If parents share physical custody, both spend substantial time housing the child. The legal custodian is the parent who has the authority to make decisions on their child's behalf. If parents share legal custody, they make decisions together or divide decisions between them.What are custodial crimes? ›
Commission of a crime by a public servant against the arrested or detained person while in custody amounts to custodial crime. The custodial crime is preceded by arrest or detention.What is asset under custody? ›
Assets under custody are client assets held mainly for execution-related or safekeeping/custody purposes only and therefore are not considered assets under management since the Group does not generally provide asset allocation or financial advice.What are the risks in custody services? ›
The primary risks associated with custody services are: transaction, compliance, credit, strategic, and reputation.What is a qualified custodian? ›
(1) Qualified custodian. A qualified custodian maintains those funds and securities: (i) In a separate account for each client under that client's name; or. (ii) In accounts that contain only your clients' funds and securities, under your name as agent or trustee for the clients.
Shared custody is the best arrangement – for some families. It's not best for every family. However, for families who are able to have shared custody, they consider it the best arrangement because it allows children to have frequent and continuing contact with both parents.How long is someone usually in custody? ›
How long police can hold you in custody depends entirely on the circumstance. Generally, the standard time the police can hold you for is 24 hours until they will need to charge you with a criminal offence or release you. In exceptional circumstances, they can apply to hold you for longer, up to 36 or 96 hours.Is custody a punishment? ›
A custodial sentence is a judicial sentence, imposing a punishment consisting of mandatory custody of the convict, either in prison or in some other closed therapeutic or educational institution, such as a reformatory, (maximum security) psychiatry or drug detoxification (especially cold turkey).What is inappropriate co-parenting? ›
Inappropriate co-parenting is a situation where parents experience so much conflict and resentment that they are unable to make decisions, make schedule changes when they are required, or address the major cruxes of parenting (like making healthcare decisions, education decisions, or religious decisions) without major ...What are the 6 types of parent involvement? ›
- Type 1: Parenting.
- Type 2: Communicating.
- Type 3: Volunteering.
- Type 4: Learning at Home.
- Type 5: Decision Making.
- Type 6: Collaborating with the Community.