Child custody: an overview
In cases of divorce, the court of jurisdiction for the divorce proceedings also determines child custody arrangements. Under the common statutory provision, if the spouses have children together while married, the parents have joint guardianship over that child and the parental rights are equal. Each parent has an equal right to the custody of the child when they separate.
When determining the home in which to place the child, the court strives to reach a decision in "the best interests of the child." A decision in "the best interests of the child" requires considering the wishes of the child's parents, the wishes of the child, and the child's relationship with each of the parents, siblings, other persons who may substantially impact the child's best interests, the child's comfort in his home, school, and community, and the mental and physical health of the involved individuals.
The parent with custody controls decisions pertaining to the child's education, religious upbringing, and health care. Courts have the option of choosing one of several types of custody. Temporary custody grants custody of the child to an individual during the divorce or separation proceeding. Exclusive custody endows one parent with all custody rights to the exclusion of the other parent. The non-custodial parent may receive supervision rights or in certain cases, supervised visitation rights. Joint custody grants the parents equal rights in making decisions regarding the child's upbringing. Courts award joint custody for cases in which both parents can properly perform their duties as parents. If one parent sues for exclusive custody, the suing parent must rebut a presumption that joint custody is in the child's best interests. A court can award the custody of a child to a third party if the third party has sought custody. The third party is often a grandparent or other close relative. If a marriage results in multiple children, a court has the authority to separate the children and split the custody between parents in accord with the best interest of each particular child. Ordinarily, however, the best interests of a child will be to live with that child's siblings, in part for reasons of emotional support.
When a court awards exclusive child custody to one parent, the non-custodial parent maintains the right to see and visit the child, absent extraordinary circumstances. If the court's custody decree fails to mention visitation rights, the law implies the parent's right to visitation. Thus, an express prohibition on visitation must exist within the decree in order to deny parental visitation rights because visitation rights stem from the fact of parenthood. Even though this strong presumption in favor of visitation rights exists, courts may impose restrictions on visitation by noncustodial parents.
If a party convinces the court that visitation rights would be injurious to the child's best interests, then the court possesses the authority to deny visitation rights. This best interest of the child analysis, however, does not give dispositive weight to the child's stated desires because parents inherently possess the right to attempt to repair the parent-child relationship. Cases in which courts deny visitation rights often include noncustodial parents who had physically or emotionally abused the child in the past and noncustodial parents severely suffering from a mental illness that would emotionally devastate the child. Noncustodial parents who are incarcerated or who have a prison record are not categorically denied visitation rights.
Like other aspects of family law, the states control most law in the field of child custody.
menu of sources
U.S. Constitution and Federal Statutes
- 28 U.S.C. § 1738A - Full Faith and Credit Given to Child Custody Determinations
- 42 U.S.C. § 651 - Child Support Enforcement Act
- 25 U.S.C., Ch. 21 - Indian Child Custody (See especially Subchapter I)
- CRS Annotated Constitution
Federal Judicial Decisions
- U.S. Supreme Court:
- U.S. Circuit Courts of Appeals: Recent Decisions Bearing on Child Custody
- Uniform Laws (See LII Locator for Uniform Matrimonial, Family, and Health Laws):
- State Divorce Laws
State Judicial Decisions
- N.Y. Court of Appeals:
Conventions and Treaties
- Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (19 Oct 96)
Key Internet Sources
- Administration for Children & Families
- Family Law Organization
- The Divorce, Alimony, & Custody Reporter
- Info. on Children & the Ct. System - Bennett & Bennett, LLC
- Child Custody and Visitation (Nolo)
- ABA Section of Family Law, Custody Committee