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12.5B: Child Custody Laws

  • Page ID
    8317
  • Child custody laws describe the legal and practical relationship between a parent and his or her child.

     

    LEARNING OBJECTIVES

     

    Contrast different types of custody

     

    KEY TAKEAWAYS

    Key Points

     

    • Physical custody involves the day-to-day care of a child and establishes where a child will live.
    • If a child lives with both parents, each parent shares “joint physical custody” and each parent is said to be a “custodial parent”.
    • Shared custody is an arrangement in which the child lives for an extended period of time with one parent and then for a similar amount of time with the other parent.
    • Alternating custody is an arrangement in which the child lives for an extended period of time with one parent and then for a similar amount of time with the other parent.
    • A custodial parent is a parent who is given physical and/or legal custody of a child by court order.
    • A non-custodial parent is a parent who does not have physical and/or legal custody of his/her child by court order.
    • In Troxel v. Granville (2000), the U.S. Supreme Court affirmed that a biological parent holds a fundamental right in choosing how to raise one’s children as they see fit.

     

    Key Terms

     

    • Parenting Schedule: A schedule of which divorced parent is responsible for the child at any given point in time.
    • Troxel v. Granville: A U.S. Supreme Court case (2000) that affirmed that a biological parent holds a fundamental right in choosing how to raise one’s children as they see fit.

    Child custody and guardianship are legal terms, which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent’s duty to care for the child. Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as “residence” and “contact” have superseded the concepts of “custody” and “access. ” Instead of a parent having “custody” of or “access” to a child, a child is now said to “reside” or have “contact” with a parent. For a discussion of the new international nomenclature, see “parental responsibility. ”

    Residence and contact issues typically arise in proceedings involving divorce, annulment, and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard. Family law proceedings which involve issues of residence and contact often generate the most acrimonious disputes. While most parents cooperate when it comes to sharing their children and resort to mediation to settle a dispute, not all do. For those that engage in litigation, there seem to be few limits.

     

    Types of Custody

     

    Under family law, there are different types of custody. Alternating custody is an arrangement whereby the child lives for an extended period of time with one parent, and then for a similar amount of time with the other parent. While the child is with the parent, that parent retains sole authority over the child. Further, shared custody is an arrangement whereby the child lives for an extended period of time with one parent, and then for a similar amount of time with the other parent. Physical custody involves the day-to-day care of a child, and establishes where a child will live. A parent with physical custody has the right to have his/her child live with him/her. If a child lives with both parents, each parent shares “joint physical custody” and each parent is said to be a “custodial parent. ” Thus, in joint physical custody, neither parent is said to be a “non-custodial parent. ”

     

    Custodial and Non-Custodial Parents

     

    A custodial parent is a parent who is given physical and/or legal custody of a child by court order. A child-custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. A non-custodial parent is a parent who does not have physical and/or legal custody of his/her child by court order.

     

    Child Custody Laws in the United States

     

    In Troxel v. Granville (2000), the U.S. Supreme Court affirmed that a biological parent holds a fundamental right in choosing how to raise one’s children as they see fit. Later in the case of O’Donnell-Lamont (2004), the court affirmed an Oregon statute requiring a presumption that the parent acts in the child’s best interests, to be met prior to applying the best interests of the child standard, placing both parties on equal footing.

     

    A New Terminology?

     

    In some places, courts and legal professionals are beginning to use the term “parenting schedule” instead of “custody and visitation. ” The new terminology eliminates the distinction between custodial and noncustodial parents and also attempts to build upon the best interests of the children by crafting schedules that meet the developmental needs of the children. For example, younger children need shorter, more frequent time with parents, whereas older children and teenagers may demand less frequent shifts yet longer blocks of time with each parent.

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    Child Custody: Residence and contact issues typically arise in proceedings involving divorce, annulment and other legal proceedings where children may be involved.In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child.