Family Law
FAQ
LAW
ENFORCEMENT GUIDE
Family Law
Video
Custody
What is child
custody?
Child custody is the right and duty to care for a minor child
on a day-to-day basis and to make major decisions about the child. In sole
custody arrangements, one parent takes care of the child most of the time and
makes major decisions about the child. In joint custody arrangements, both
parents share in making major decisions, and both parents also might spend
substantial amounts of time with the child.
How do
courts decide custody?
If the parents cannot agree on
custody of their child, the court decides custody according to the best
interest of the child. Determining the best interest of the child involves
consideration of many factors, including the health and sex of the child, the
primary caregiver prior to the divorce, parenting skills and willingness to care
for the child, the emotional ties between child and parent, willingness to
facilitate visitation by the other parent, and each parent's moral
fitness.
Do mothers automatically receive custody?
No. Under
the laws of almost all states, mothers and fathers have an equal right to
custody. Courts are not supposed to assume that a child is automatically better
off with the mother or the father. Of course, judges, like the rest of us, are
products of their background and personal experience. Some judges may have a
deep-seated belief that mothers can take care of children better than fathers
and that fathers have little experience in parenting. Conversely, some judges
may believe that fathers are automatically better at raising boys--particularly
older boys. Judges with such biases may apply these views when they decide
custody cases, although they are supposed to base decisions on the facts of each
case and not on automatic presumptions. As a group, judges are fair and unbiased
in their decisions, and the level of bias is less than it was in years past.
Bias on the part of individual judges can be avoided if the parents are able to
decide between themselves what the custody or parenting arrangements should
be.
In a contested custody case, both the father and mother have an equal
burden of proving to the court that it is in the best interest of the child that
the child be in his or her custody. There are a couple of states that have laws
providing that if everything else is equal, the mother may be preferred; but
even in those states, many fathers have been successful in obtaining
custody.
How have the laws changed in deciding custody disputes between
mothers and fathers?
The law has swung like a pendulum.
From the early history of our country until the mid-1800s, fathers were favored
for custody in the event of a divorce. Children were viewed as similar to
property. If a husband and wife divorced, the man usually received the
property--such as the farm or the family business. He also received custody of
the children. Some courts viewed custody to the father as a natural extension of
the father's duty to support and educate his children.
By the mid-1800s, most
states switched to a strong preference for the mother under the Tender Years
Doctrine. In a contested custody case, a mother would receive custody unless
there was something very wrong with her, such as she abused the child or
suffered from mental illness or alcoholism. The parenting skills of the father
were not relevant. This automatic preference for mothers continued until the
1970s. Then principles of equality and co-parenting took over.
What is the
most important factor in deciding custody?
That will
vary with the facts of each case. If one parent has a major problem with
alcoholism or mental illness, has abused the child, or has committed domestic
violence, that could be the deciding factor. If neither parent has engaged in
unusually bad conduct, the most important factor often is which parent has been
primarily responsible for taking care of the child on a day-to-day basis. Some
states refer to this as the primary caretaker factor. If one parent can
show that he or she took care of the child most of the time, that parent will
usually be favored for custody. Use of this factor promotes continuity in the
child's life and gives custody of the child to the more experienced parent who
has shown the dedication to take care of the child's day-to-day needs. If both
parents have actively cared for the child or if the child is older, the factor
is less crucial, although it is still considered. Regardless of which parent has
primary custody, children are usually best served when the child has continued,
meaningful contact with both parents.
May a child decide where he or she
wants to live?
The wishes of a child can be an
important factor in deciding custody. The weight a court gives the child's
wishes will depend on the child's age, maturity, and quality of reasons. Some
judges do not even listen to the preferences of a young child (for example, a
child less than eight years old) and instead assume the child is too young to
express an informed preference. A court is more likely to follow the preferences
of an older child, although the court will want to assess the quality of the
child's reasons. If a child wants to be with a parent only because that parent
offers more freedom and less discipline, a judge is not likely to honor the
preference. A child whose reasons are vague or whose answers seem coached may
not have his or her preferences followed.
On the other hand, if a child
expresses a good reason related to the child's best interest--such as genuinely
feeling closer to one parent than the other--the court will probably follow the
preference. Although most states treat a child's wishes as only one factor among
many to be considered, a few states allow a child of twelve or fourteen the
"absolute right" to choose the parent with whom the child will live, as long as
the parent is fit.
If a parent has a sexual relationship outside of marriage, how
does that affect a court's decision on custody?
In most
states, affairs or nonmarital sexual relations are not a factor in deciding
custody unless it can be shown that the relationship has harmed the child. A
discreet affair during the marriage might not be a significant factor.
Similarly, if, after the marriage is over, a parent lives with a person to whom
he or she is not married, the live-in relationship by itself may not be a major
factor in deciding custody, although the quality of the relationship between the
child and the live-in partner can be an important factor in a custody
dispute.
If the parent's nonmarital sexual relationship or relationships have
placed the child in embarrassing situations or caused significant, provable
stress to the child, then the relationship(s) would be a negative factor. In a
few states, courts are more inclined to assume that a parent's nonmarital sexual
relationship is harmful to the child. The issue of a parent's sexual conduct can
be one in which individual judges may have personal biases that influence their
decisions.
If a parent is homosexual, what impact does that have on
custody?
The impact varies dramatically from state to state. Courts in
a few states seem more willing to assume harmful impact to a child from a
parent's homosexual relationship than from a heterosexual relationship. Courts
in other states treat homosexual and heterosexual relationships equally and will
not consider the relationship to be a significant factor unless specific harm to
the child is shown.
If one parent is trying to undermine
the child's relationship with the other parent, how does that affect
custody?
Most states favor an ongoing, healthy relationship between the
child and both parents. If one parent is trying to undermine the child's
relationship with the other parent, that is a negative factor. If other factors
are close to equal, a court may grant custody to the parent who is more likely
to encourage an open and positive relationship with the other parent, unless
that other parent has been abusive or otherwise harmed the
child.
If one parent is religious and the other is not, may the court
favor the more religious parent?
Normally, no. Under the First
Amendment to the U.S. Constitution, both parents have a right to practice (or
not practice) religion as they see fit. A judge cannot make value judgments
about whether a child is better off with or without religious training or about
which religion is better. If a child has been brought up with particular
religious beliefs, and religious activities are important to the child, a court
might favor promoting continuity in the child's life, but the court should not
favor religion per se. In some cases, a parent's unusual or nonmainstream
religious activities may become an issue, especially if specific harm to the
child is shown.
Can custody decisions be
changed?
Yes. A court may always change child custody to meet the
changing needs of the growing child and to respond to changes in the parents'
lives. Because courts favor stability for the child and do not want to encourage
contentious litigation, a parent seeking to change custody must show that the
conditions have changed substantially, and usually unpredictably, since the last
custody order. The parent must also show that changing the custody arrangement
would be better for the child. Sometimes the parent must show that not changing
custody would be harmful to the child.
What legal remedies are available if
a parent abducts a child?
Abduction of a child by a parent is
a crime under state laws and, under certain circumstances, may also be a federal
offense. Local police, state police, and in some cases the FBI can help in
locating missing children. Parents who abduct their children can also be forced
to pay the expenses incurred by the other parent in trying to find and return
the child. To recover such expenses, a parent would probably need the help of a
private lawyer.
If a parent with custody fears that the other parent will
abduct the child, he or she should immediately consult a lawyer.
