Child Custody: What You Need to Know
The days are long over when a child had at most two parents - one mother and one father - and everyone knew exactly who those people were.21 min read
Who Is a Parent?
The parent who has physical custody of a child is called the custodial parent. The other parent is termed the noncustodial parent. This is true even if the parents share legal custody. Some states now grant joint physical custody, where the parents share the physical custody of their child (for example, alternate months or years, or three days a week in one home and four in the other). In joint physical custody arrangements, a parent is considered the custodial parent when she actually has the child.
When one parent is awarded sole physical custody of a child, the other parent is referred to as the noncustodial parent. When the parents share the physical custody of their child, sometimes the parent with whom the child is not living is considered the noncustodial parent. Noncustodial parents almost always have some sort of visitation arrangement with the child.
An adult who is not legally responsible for the care, custody and support of a child, but who has established a significant emotional bond with the child such that termination of the contact between them would be detrimental to the child, is sometimes referred to as the child's psychological parent. A few courts give psychological parents visitation rights with the children.
In Michigan (Atkinson v. Atkinson, 408 N.W.2d 516 (1987)) and Wisconsin (In re Paternity of D.L.H., 419 N.W.2d 283 (1987)), a spouse who is not a legal parent (biological or adoptive) may be granted custody or visitation under the notion of equitable parent. Courts apply it when a spouse and child have a close relationship and consider themselves parent and child, or when the legal parent encouraged this relationship. If the court grants an equitable parent custody or visitation, then the parent will also be required to pay child support.
Equitable parenthood arose to protect husbands who discover, in the course of a divorce, that they are not the biological fathers. It could also protect a stepparent who is divorcing a biological parent when the other biological parent is either deceased or absent.
An adoptive parent is an adult who has legally adopted a child. In this situation, the biological parents' rights and obligations are terminated (meaning that they are not entitled to custody of or visitation with the child, nor are they obligated to support the child) and the adoptive parents gain these rights and obligations. If the parents of an adopted child split up, they (assuming they both legally adopted the child) are both entitled to seek custody of or visitation with the child.
A biological parent is someone whose sperm or egg has been used to create a child. In most situations, biological parents are also the legal parents of the child - if they divorce or otherwise decide not to live together, they are both entitled to seek custody of or visitation with the child. Sometimes, however, a biological parent relinquishes a child or has a child taken away and placed for adoption. These parents no longer have the right to seek custody of or visitation with the child.
Sometimes, a biological parent may not be considered the legal parent of a child. In certain states, including California, for example, a man who donates his sperm to a physician to be used to artificially inseminate a woman may not be legally considered the father of the child. (California Family Code Section 7613.) In states that permit surrogate mother contracts (See Reproductive Rights and Reproductive Technology chapter) often a man's semen is used to inseminate another woman who acts as the surrogate mother. After the child is born, the biological mother - the surrogate mother - relinquishes her rights to custody and visitation. The man may raise the child himself, with his male partner, or most commonly, with his wife who formally adopts the child.
Natural parent is a term sometimes used to describe a biological parent.
A stepparent is a person married to a man or woman who has a child. In general, the stepparent and stepchild have no legal relationship. This means, in most states, that there is no right of inheritance between a stepparent and a stepchild (absent a will) and no obligation to support nor any rights of visitation if the legal parent and the stepparent divorce.
If a stepparent has adopted his or her spouse's child (see Adoption chapter) and then later divorces the biological parent, the stepparent and biological parent have equal rights to seek custody of or visitation with the child. If a stepparent has not adopted the child and the couple divorces, the stepparent, in many states, may seek visitation with the child as a psychological parent.
What Is Custody?
Legal custody of a child is the right and obligation to make decisions about a child's upbringing. Decisions regarding schooling, and medical and dental care, for example, are made by a parent with legal custody. In many states, courts now award joint legal custody to the parents, which means that the decision-making is shared.
Physical custody is the right of a parent to have a child live with him. Some states recognize the concept of joint physical custody where the child spends approximately half the time in each parent's home.
Sole custody means that only the custodial parent has physical custody and legal custody of a child, and that the noncustodial parent has visitation rights. In most states, one parent is awarded sole custody of the children, although, if there is more than one child, one parent may have sole custody of one child and the other parent sole custody of the other. (This is unusual, however, as most judges are reluctant to separate siblings.) In some situations, one parent is given sole physical custody, but legal custody is exercised jointly by the parents.
SIDE NOTE - TENDER YEARS DOCTRINE: In the past, most states provided that custody of children of tender years (about five and under), had to be awarded to the mother when parents divorced. This rule has been rejected in most states, or relegated to the role of tie-breaker when both parents request custody, are fit to have custody and the children are pre-school age.
Parents who don't live together have joint custody (also called shared custody) when they agree, or a court orders them, to share the decision- making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, no longer cohabiting or even if they never lived together. Joint custody may be joint legal custody, joint physical custody (where the children spend a significant portion of time with each parent) or both. It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.
Usually, when parents share joint custody, they work out joint physical custody according to their schedules and housing arrangements. If the parents cannot agree, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house. Other joint physical custody arrangements include alternating years or six-month periods, or spending weekends and holidays with one parent while spending weekdays with the other.
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents, and alleviating some of the burdens of parenting for each parent. There are, of course, disadvantages - children must be shuttled around, parental non- cooperation can have seriously devastating effects on children and maintaining two homes for the children can be expensive.
- Example 1: LeMar and Shirley are divorced. LeMar lives in Kansas City, and Shirley lives in St. Louis. Joint physical custody is impossible because of the distance between them, but they speak at least once a week concerning the children's upbringing and share in the decision- making responsibility. This is joint legal custody.
- Example 2: Ted and Dorothy had two children during their marriage. They are now divorced, but live in the same county and have joint physical and legal custody of the children. The children live with Ted Sunday through Wednesday morning, and live with Dorothy Wednesday after school through Saturday. Ted and Dorothy also share the decision-making responsibility.
BIRD'S NEST CUSTODY
Bird's nest custody is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out.
What Is Visitation?
When a court determines the visitation rights of a noncustodial parent, it usually orders visitation at reasonable times and places, leaving it to the parents to work out a more precise schedule. Reasonable times and places allows the parents to exercise flexibility by taking into consideration both the parents' and the child's schedules. For the reasonable visitation approach to succeed, however, the parents must cooperate and communicate with each other frequently.
FIXED VISITATION SCHEDULE
Sometimes courts ordering custody and visitation for children set up schedules, including the times and places for visitation with the noncustodial parent, such as every other weekend or Tuesday and Thursday evenings. A court will be inclined to order a fixed schedule especially if the hostility between the parents is so severe that the constant contact between them may be of detriment to the child.
When a noncustodial parent has a history of violent or destructive behavior, especially toward the child, the court often requires that visitation between that parent and the child be supervised. This means that an adult (other than the custodial parent) must be present at all times during the visit. The adult may be known or unknown to the child, and may be someone agreed upon by the parents or appointed by the court. No matter how the adult is chosen, he must be approved by the court ordering the supervised visitation.
When parents separate or divorce, grandparents' relationships with their grandchildren are often at risk. To minimize the risk, all states have laws which allow grandparents to seek visitation rights with their grandchildren after divorce or separation. This right may be enforced even when both parents of the child object to the visitation or when the child's family is still intact. For example, the Supreme Court of Missouri decided that a statute authorizing a court to grant reasonable visitation rights to the grandparents was constitutional even though the parents claimed that such visitation would interfere with their constitutional right to raise their child as they saw fit. (Herndon v. Tuhey, 857 S.W.2d 203 (1993).) A New York couple won visitation rights with their grandson even though their grandson's family was still intact. (Emanuel S. v. Joseph E., 78 N.Y.2d 178 (1992).)
TEMPORARY CUSTODY OR VISITATION
When a couple separates or files for divorce, the spouses often need the immediate intervention of a court to establish custody and visitation. Either spouse may request a preliminary hearing before the judge to have these issues resolved. The orders made in these preliminary hearings are often, but not necessarily, what the final judgment will include.
Example: Ken and Kim have separated; they have three teen-aged children. Ken is a psychotherapist who works out of the home and Kim is a television reporter. Because Ken's practice is in the home, he stayed there with the kids and Kim moved in temporarily with a friend. Kim filed a motion with the court requesting a preliminary hearing on the issues of use of the house and custody. At the hearing, the court is likely to grant Ken use of the home because of his professional needs and because he's got the kids. If the kids were younger, or if Kim worked part-time, the court might have been more inclined to grant her use of the home and custody and to order Ken to set up his practice elsewhere. When the court later makes the permanent orders (at the trial or when asked to review the couple's divorce agreement), it is likely to make these temporary provisions permanent unless the situation has changed or the parties agree to something different.
PERMANENT CUSTODY OR VISITATION
A permanent custody or visitation order is permanent because it is from a final court order. It is intended to remain as ordered until the child reaches the age of majority. In reality, however, permanent custody or visitation may be modified if the parents agree or if the parent wanting the change petitions the court, shows a change of circumstance and the court issues a new order.
Types of Guardianship
Parens patriae is a Latin phrase meaning "parent of the country," which means that a state may act as the guardian of any child within its borders. The concept was used by courts under traditional common law to provide their authority for making custody decisions and other decisions affecting minors and adults legally unable to care for themselves. Today, every state has laws explicitly defining the court's power in the area of child custody. Thus, courts today never use parens patriae power to make custody rulings.
GUARDIAN AD LITEM
If a party in a lawsuit is a minor, the court must appoint a person to protect and manage the minor's interests. That person is called a guardian ad litem and is often, although not always, a parent or close relative, or an attorney. Twenty-five states also authorize the appointment of a guardian ad litem to represent the child's interests, without the child actually becoming a party to the case, when custody is an issue.
What is Mediation?
Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle the dispute. The mediator, however, does not have the power to impose a solution on the parties.
Mediation is often used to help a divorcing or divorced couple work out their differences, especially custody and visitation. Some lawyers and mental health professionals employ mediation as part of their practice. Eleven states require mediation in custody and visitation disputes. Nineteen states allow courts to order mediation and one state permits voluntary mediation. See Table 5.2 in the appendix.
Factors in Determining Custody
BEST INTERESTS OF THE CHILD
When deciding custody and visitation rights, a court gives the best interests of the child the highest priority. What the best interests of the child are in a given situation depends upon many factors, including:
- age and sex of the child
- mental and physical health of the child
- mental and physical health of the parents, including whether the child is exposed to secondhand smoke and any history of child abuse
- lifestyle and other social factors of the parents
- the love and emotional ties between the parent and the child
- the ability of the parent to give the child love and guidance
- the ability of the parent to provide the child with food, shelter, clothing and medical care
- established living pattern for the child concerning school, home, community, religious institution
- school quality - particularly when one parent wishes to move
- the child's preference, if the child is above a certain age, usually about 12, and
- the ability of the parent to foster healthy communication and contact between the child and the other parent.
ESTABLISHED LIVING PATTERN
When a parent seeks custody of, or more visitation with, a child, the court's decision will normally favor the parent who will best maintain stability in the child's surroundings. There is no set standard as to what constitutes stability, but a judge looks for continuity in a child's life. It is important that the child, to the degree possible, keep the same school, community and religious ties. If maintaining the same contacts is not possible, the judge looks to which parent is best able to create a stable environment for the child.
- Example 1: Larry and Tanya divorced after 15 years of marriage and two children. Both requested custody. The judge was faced with a hard decision because both Larry and Tanya were able, loving parents. After the divorce, however, Larry moved 100 miles from where the family lived; Tanya stayed in the same town. Because both parents would provide the children with love, guidance and financial support, the judge awarded custody to Tanya, emphasizing that the children's home, school and community ties were established and that there was no reason to disrupt them.
- Example 2: Byron is eight years old. He's in the third grade and a member of the school band, and takes kiddie cooking classes once a week. Byron's parents have recently separated, and both want custody. Byron's family has moved every other year due to his father's business obligations. Byron's father argued to the judge that frequent moving is not harmful to Byron, and gives him an opportunity to experience different places and people while growing up. Byron's mother emphasized that she has no plans to move and that she feels Byron needs to settle in one place. The judge agreed with the mother, ruling that stability in Byron's life was more important than the opportunity to live in many places and meet many people.
LIFESTYLE AND SOCIAL FACTORS
The way each parent lives can be an important factor when a court decides which parent is entitled to physical custody and what visitation rights are appropriate. In any given case, the judge may consider one parent's lifestyle more in the best interest of the child than the other's. The main elements courts tend to consider when examining a parent's lifestyle are family stability, occupation, type of home maintained, interests and hobbies, sexual history, religious practices and income.
SIDE NOTE - GAY OR LESBIAN PARENT: If a parent is gay or lesbian, many courts deny or strictly limit the parent's custody of or visitation with his or her children. In a few states, however, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of her child. As a practical matter, however, lesbian and gay parents in those states may still be denied custody. This is because judges, when considering the best interests of the child, may be motivated by their own prejudices as well as by the prejudices of the community and may find reasons other than the parent's sexual orientation to deny the lesbian or gay parent custody.
Over 35 states have laws authorizing courts to consider a child's preference concerning which parent she wants to live with following a divorce or separation, provided the child is over a certain age (about ten). Generally, the older the child, the more weight the desire is given. In a few states, the court must grant the child's wish if the child is at least a certain age (usually 12 to 14).
Physical, emotional or sexual mistreatment of a child is child abuse. Physical abuse generally consists of causing physical harm to a child, even if the injury is temporary. Thus, corporal punishment that causes bruising or burning, and deprivations of food, water or needed medical treatment are all examples of physical abuse. While some parents who rely on force to discipline their children may be unable to tell the difference between child abuse and proper parental treatment, most parents know where the line is, even if it can't be defined.
Emotional abuse includes speech and conduct calculated to deprive the child of dignity and self-esteem, such as humiliating the child in front of family or friends, isolating the child from other persons for long periods of time and habitually directing language or gestures at the child that are designed to punish rather than instruct.
Sexual mistreatment includes virtually all behavior toward the child that is designed to lead to sexual gratification of either the adult or the child. While the most common forms of sexual mistreatment are outright sexual acts such as fondling or sexual intercourse, sexual mistreatment may also consist of placing the child in compromising situations such as nudity, inappropriate clothing, and methods of discipline that are commonly associated with sexual gratification.
After Custody Is Settled
TRANSPORTATION OF CHILDREN
One issue which must be decided when arranging custody and visitation is who will be responsible for transporting the children to and from the noncustodial parent. Often, the time and cost involved is shared, or if the parents live far from each other, the parent in better economic condition may be required to pay more of the cost. Transportation of children for visitation purposes is a commonly disputed issue after the divorce and should not be overlooked when the parents draft their divorce agreement.
Custodial interference occurs when a parent (guardian or other relative) keeps a child away from a person who has a legal right to custody. In most states, it's a crime to take a child from his parent or legal guardian intending to deprive that person of custody, even if the taker also has custody rights. In many states, depriving a parent or guardian of custody is a felony if the child is taken out of state. Many states, however, recognize good-cause defenses, such as the taker acted to prevent imminent bodily harm to herself or the child. In addition, some states let the taker take the child if the taker is requesting custody in court and has notified the court or police of the child's location. In most states, the parent or guardian deprived of custody may sue the taker for damages. See Table 5.3 in the appendix.
Visitation interference occurs when the custodial parent makes the visitation of the child by the noncustodial parent impossible or irregular.
KIDNAPPING OR CHILD CONCEALMENT
When a parent without physical custody (who may or may not have visitation rights) removes a child from, or refuses to return a child to, the parent with physical custody, in addition to being custodial interference, it is considered kidnapping or child concealment. Federal and state laws have been passed to prosecute and punish parents guilty of kidnapping, which is a felony in over 40 states.
SIDE NOTE - PARENTAL KIDNAPPING PREVENTION ACT (PKPA): The Parental Kidnapping Prevention Act (28 U.S.C. Section 1738A and 42 U.S.C. SectionSection 654, 663) is a federal statute enacted in 1980 to address kidnapping by noncustodial parents and inconsistent child custody decisions made by state courts. The law provides for penalties for kidnapping and requires states to recognize and enforce the custody decisions of courts in other states, rather than make a second, and possibly inconsistent, decision.
FEDERAL PARENT LOCATOR SERVICE
Parent locator services have been created by state and federal governments to assist a parent in locating her child's other parent in order to enforce child support orders. They also help parents locate missing children who may have been kidnapped by the other parent. Many parent locator services are associated with district attorney or state's attorney offices.
SIDE NOTE - INTERNATIONAL CHILD ABDUCTION REMEDIES ACT: The International Child Abduction Remedies Act (12 U.S.C. SectionSection 11.601 through 11.610) is a federal statute that enables the Hague Convention on the Civil Aspects of International Child Abduction to be followed in the U.S. This Hague Convention is an international agreement among the U.S. and 29 other countries that has the purpose of providing the prompt return of children wrongfully removed or retained in any participating country and ensuring that the rights of custody and access under the law of one country are effectively respected in another country. It addresses jurisdictional questions and provides common rules and procedures to determine child custody in a dispute that crosses international borders.
U.S. STATE DEPARTMENT OFFICE OF CITIZEN AND COUNSELOR SERVICES
The federal government office that provides assistance both when a child is abducted from the U.S. to another country and when a child is abducted from another country to the U.S. is the U.S. State Department Office of Citizen and Counselor Services.
MODIFICATION OF CUSTODY TERMS
After a final decree of divorce is filed with a court, former spouses may agree to modify the custody or visitation terms. This modified agreement (also called a stipulated modification) may be made without court approval. If one person, however, later reneges on the agreement, the other person may not be able to enforce it unless the court has approved the modification. Thus, it is advisable in most situations to obtain court approval before relying on such agreements. Courts usually approve modification agreements unless it appears that they are not in the best interest of the child.
If a parent wants to change an existing court order affecting custody or visitation and the other parent won't agree to the change, he must file a motion requesting a modification of the order from the court that issued it, usually on the ground of changed circumstances.
When a party files a request for modification of custody or visitation, she must usually show that circumstances have changed substantially since the time of the previously issued order. This rule encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests. What follows are a couple of examples of change of circumstances:
- Change in lifestyle. Changes in custody or visitation orders may be obtained if substantial changes in a parent's lifestyle threaten or harm the child. If, for example, a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case. For instance, cohabitation by a parent may be ignored in one place, but not another.
SIDE NOTE - RACE: Palmore v. Sidoti, 466 U.S. 429 (1984) is a U.S. Supreme Court decision in which the court ruled that it was unconstitutional for a court to consider race when a noncustodial parent petitions a court for a change of custody. In the case, a white couple had divorced, and the mother had been awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstance that the boy was now living with an African-American man in an African-American neighborhood. A Florida court granted the modification. The U.S. Supreme Court reversed, ruling that societal stigma, especially a racial one, cannot be the basis for a custody decision.
- Destabilized household. A home in which a devastating event has occurred may be referred to as a destabilized household. Examples of such events include the arrest of a parent for a violent crime, the death or desertion of a parent, or an allegation that a parent has sexually abused his child. If a noncustodial parent can prove to a judge that the custodial parent's home has become destabilized and that the event is devastating to the child, a request for modification of custody may be granted.
- Geographic move. If a custodial parent geographically relocates a substantial distance, the move may constitute a changed circumstance that justifies the court's modification of a custody or visitation order in order to accommodate the needs of the noncustodial parent. Some courts switch custody from one parent to the other. Other courts require that the relocating parent pay transportation costs for visits with the noncustodial parent. To discourage moves, some courts forbid parents to remove the children from the state of the divorce without first giving written notice to the other parent. This notice gives the noncustodial parent the opportunity to go to court and ask for a custody or visitation modification.
TEMPORARY MODIFICATION OF CUSTODY
When a custodial parent will be temporarily out of state, hospitalized, or otherwise unable to care for the child, she may request that a court make a temporary modification of custody, giving the other parent custody for the time of the incapacity, but restoring custody to her when the incapacity ends.
Where the custodial parent will be temporarily unavailable to care for the child, and there is no other parent to have custody, the custodial parent should name someone to act as guardian of the child for the temporary period.
UNIFORM CHILD CUSTODY JURISDICTION ACT (UCCJA)
All states and the District of Columbia have enacted a statute called the Uniform Child Custody Jurisdiction Act, which sets standards for when a court may make a custody determination and when a court must defer to an existing determination from another state. In general, a state may make a custody decision about a child if (in order of preference):
- The state is the child's home state - this means the child has resided in the state for the six previous months, or was residing in the state but is absent because a parent has removed the child from or retained the child outside of the state.
- There are significant connections with people - such as teachers, doctors and grandparents - and substantial evidence in the state, concerning the child's care, protection, training and personal relationships.
- The child is in the state and either has been abandoned or is in danger of being abused or neglected if sent back to the other state.
- No other state can meet one of the above three tests, or a state can meet at least one of the tests but has declined to make a custody decision.
If a state cannot meet one of these tests, even if the child is present in the state, the courts of that state cannot make a custody award. Also, a parent who has wrongfully removed or retained a child in order to create a home state or significant connections will be denied custody. In the event more than one state meets the above standards, the law requires that only one state award custody. This means that once the first state makes a custody award, another state can neither make another "initial" award nor modify the existing order.
Having the same law in all states helps achieve consistency in the treatment of custody decrees. It also helps solve many of the problems created by kidnapping or disagreements over custody between parents living in different states.
- Example: Sam and Diane met and married in Missouri. They moved to Delaware where their child (Sam Jr.) was born. Sam, Diane and Junior lived in Delaware until Junior was ten. At that time, Sam took Junior to Missouri in an effort to divorce Diane and raise Junior himself. When Sam went to court in Missouri and requested custody, his request was denied because Delaware is Junior's home state, the state with which he has significant connections, and Sam removed Junior from Delaware in an effort to create home state jurisdiction in Missouri. (Diane should go to court in Delaware and request custody, even though Junior is in Missouri.)
SIDE NOTE - FULL FAITH AND CREDIT: Full faith and credit is a legal principle requiring judges to recognize and enforce valid decrees and judgments issued by courts in other states.
In the past, states often did not afford full faith and credit to custody decisions of courts in other states, preferring instead to decide the issues on the evidence before them. This often led to contradictory custody orders and sometimes children were kidnapped and thrown back and forth. Now, however, the Uniform Child Custody Jurisdiction Act requires states to give full faith and credit to custody decisions rendered in other states.
The following tax benefits are available to parents to offset the cost of raising children:
- the earned income credit * the child care credit
- medical expense deductions, and
- the head of household filing status.
Only a custodial parent is entitled to claim the child care tax credit. In general, employed custodial parents of a dependent child under the age of 13 are eligible for the credit for child care expenses incurred so that the parent can earn an income. As the custodial parent's income increases, however, the credit phases out.
Both parents can claim a deduction for medical expenses actually paid, but only if those medical expenses exceed 7.5% of their adjusted gross income. If your total medical expenses are high enough, you may want to allocate them to the lower wage earner so that that parent can take the deduction.
Only a parent with physical custody (meaning custody more than half of the time) can file as head of household. If the parents have joint legal and physical custody (and physical custody is divided 50 - 50), neither can file as head of household because the dependent child resides with neither parent for more than 50% of the year.
If you have more than one minor child and share physical custody, you can specify your arrangement as 51% for one child with one parent and 51% for the other child with the other parent. Because each parent has a dependent child in the home more than 50% of the year, each parent can file as head of household.