• Child Custody Law

    Child custody is often at the heart of divorce proceedings. Child custody law is the area of law concerned with which parent is granted custody of a child. Parents that have children together while they are married are joint guardians of the child. In a divorce case, the court tries to decide what is in the best interest of the child when ruling on which parent the child will live with. The court considers factors like the child's relationship with the parents, where the child will be most comfortable, and what the child's school situation is. Whatever parent is awarded custody of the child actually enjoys significantly more power than the parent that the child does not live with. The parent that has custody gets to make decisions about the child's schooling, religious upbringing, and health care.

    Child custody is an area of law that has a foundation based upon various historical presumptions. Under common law, the law housed a paternal presumption that favored a father as the best person to receive custody of the children. After a woman got married, she basically forfeited her rights to property and to custody of her children, because she had no way of supporting a child without the benefit of a father. By the early 20th century, paternal preference was replaced by the maternal presumption and the “tender years” doctrine. This doctrine presumed that children under the age of 13 were best suited to be cared for by their mothers. The tender years doctrine relied heavily on the physical and emotional needs that only a mother can provide. During the 1970s, the “tender years” doctrine was replaced by the sex-neutral “best interests of the child” standard in most jurisdictions. While legislatures tried to adopt laws that did away with sex presumptions, some states still passed laws that showed lingering traits of the maternal presumption. For example, those states that did not adopt the best interests of the child standard, decided to adopt a primary caretaker standard, which put the custodial emphasis on the parent who was most experienced in taking care of the child.

    There are several acts passed by state legislatures that deal solely with child custody issues. The Uniform Marriage and Divorce Act (UMDA) was passed by most states in the United States, and it dictates that custody should be determined based on the best interests of the child standard. Section 402 of the UMDA sets out the guidelines for determining the best interests of the child: parents’ preference as to child’s custody, child’s preference, relationship between the child and his parents, child’s adjustment to the home, school, and community where each parent lives, and the mental/physical health of each parent. This list is not exhaustive and it is not uncommon for each state to include additional considerations. Judges are the decision-makers in determining the best interests of the child in a custody proceeding after they weigh all the relevant factors. Other factors that are often pertinent to determining the best interests of the child in a custody proceeding include religion, race, and the possible separation of siblings. It is important to note that race can be used as one factor among many others when deciding custody, but it is unconstitutional for race to be used as the sole deciding factor. Furthermore, courts cannot show favoritism over one parent’s religion, but they can consider how the child will be affected if exposed to competing religions.

    Child custody law is not just exclusively concerned with which parent gets custody. Visitation rights are also a large part of child custody law. Even if a court awards child custody to one parent, the other parent is almost always allowed to visit and see the child. For example, if a mother is granted custody of her son, a father can still visit the son and continue a relationship with his child. The rationale behind this is that children should be able to have relationships with their parents, even if the parents are divorced or no longer together. Parents have a presumed right of visitation. If there is a special circumstance that leads the court to deny visitation rights, the court must expressly state this prohibition in its order. Circumstances that could lead to a denial of visitation rights may exist when the non-custodial parent is mentally ill or if the parent was physically or emotionally abusive toward the child.

    Different states have different child custody laws. For example, some states presume that a mother automatically gets custody in the case of unmarried parents while others expect a mother to ask the court for custody, even if the father is not around. Child custody proceedings can often become bitter and filled with animosity. A parent vying for the custody of their child can resort to trying to poison the child against the other parent. At times, parents may even violate court orders by bringing a child out of a particular jurisdiction in order to deny the other parent access to the child. These are the kinds of issues that are found in child custody law. Courts can order joint custody arrangements but often hesitate to do so because such an arrangement requires the two parents to work well with each other and cooperate.
    Another factor that is often given great weight in determining custody is which parent was the primary caretaker of the child. The reasoning for this is that the parent who was the primary caretaker has more of an emotional bond with the child. A court will consider a parent the primary caretaker if that parent bathed the child, dressed the child, prepared meals for the child, or took the child to doctor's appointments. These are examples of the type of activities that courts view as conducted by primary caretakers. Despite these considerations, whatever is in the best interest of the child is the principal factor in deciding the issue of custody.
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