Child Custody

August 3, 2011

Child custody means the legal responsibility for a child. When the parents of a child are married and live with the child, questions of child custody are rare. But when parents separate from each other or divorce, or when parents live separately from their child, there is often a question as to who has custody of the child.

Custody itself can be divided in to two parts, physical and legal custody. Physical custody refers to providing the day-to-day care for the child. Legal custody refers to making important decisions about the child, like choosing schools and making medical decisions. Physical and legal custody can be arranged differently for the same child.

Custody can also be separated into two other categories, sole custody and joint custody. Sole custody means that one parent has the responsibility for the physical or legal custody or for both. Joint custody means that the parents share physical or legal custody or both. It is possible to have many combinations of these types of custody. For example, one parent could have sole physical custody of the child while the parents have joint legal custody. Joint physical custody does not have to mean an even split of time between parents. In most joint custody arrangements, the child will spend more time with one parent than the other, particularly if the child is in school and the parents do not live close enough to exchange the child frequently.

Laws about custody are set by each state, rather than by the federal government, because of which there can be many differences in laws between one state and another. Some states have laws that favor joint custody while other states do not.

Child custody decisions used to be determined by gender. The first gender-based presumption was that the father should have custody of the children, since he was responsible for them and should be able to benefit from their labor. That presumption was replaced by one in the opposite direction. The “tender years” presumption gave custody of young children to mothers because of a belief that the mother was a better nurturer. Current child custody law does not contain any formal gender-based presumptions. Lingering genderbased stereotypes may play a role in a judge’s custody decision. Those stereotypes may help a woman win a custody battle because a judge believes women care for children well. On the other hand, those stereotypes may be a hindrance to women who do not fit the female image that the judge has in mind. For example, if a mother and father share equally in infant care activities such as bathing, feeding, and changing an infant, the father may be seen as outstanding and the mother many be seen as usual, even though their roles are equal.

Most custody decisions are made by the agreement of the parents, with the parents having an understanding of how a judge might decide, if that were required. When courts are called upon to make a decision, they can take into consideration the physical and mental health of the parents, any history of violence, each parent’s relationship with the child, the parents’ abilities to work with each other, and many other factors.

The laws of most states favor custody decisions that are stable and reliable for the child. For that reason, it is often harder to get a court to change a custody decision once a decision has been made. There may be a requirement that the child be in danger in order to make a change in custody soon after a recent court order.

Divorces are not the only times that child custody decisions are made. Parents who have never been married may separate, requiring a custody determination.

And often there are others who are not legally or biologically parents, but who fill the role of a parent. Grandparents may care for chlldren, stepparents may play that role, and Unmarried partners of a biological parent may all have emotional ties that are equivalent to a parent. BUt these emotional ties alone are not enough to even ask for custody in court. To be able to seek legal custody, a person must have standing, which means a right to be able to go to court over an issue. Generally a parental equivalent will not have standing unless that person has cared for the child, without the biological parent being around, for an extended period of time.

When one parent gets custody of a child, whether by agreement or through a judge’s decision, the other parent will likely get to have visitation with the child. Visitation arrangements can vary depending upon the needs and abilities of the parents and the child. Visitation can be limited or restricted if the visitation poses a risk to the child.

Custody and visitation decisions should not be confused with determinations of parental fitness or termination of parental rights. Courts often become involved in families where there is abuse or neglect of a child. If the situation cannot be made safe for the child, the parents’ rights could be ended. These are situations where the state takes custody of the child, and ordinary child custody cases rarely turn into such situations.

Custody determinations can be arranged by agreement of the couple, and when the couple cannot agree, a judge makes the decision. In most cases the parents reach an agreement, the judge makes sure the agreement is fair, and the judge makes the parents’ agreement a part of a court order.

Lawyers can provide important services in child custody cases. Lawyers can make sure that people who agree to a custody arrangement understand how the agreement will affect them and the child. Lawyers can also represent parents in negotiating an agreement, or in presenting a case to a judge for a decision. But lawyers can be expensive. Sometimes free legal assistance can be obtained through a local office of the Legal Services Corporation, or through other local agencies. Many people represent themselves in a child custody dispute, but this should be a last resort.

SEE ALSO: Adoption, Child care, Cohabitation, Day care, Divorce, Divorce mediation, Domestic partnership, Parenting


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