Child custody and
guardianshipA legal guardian a person who has the legal authority to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability...
are legal terms which are sometimes used to describe the legal and practical relationship between a
parentA parent is a mother or father; one who sires or gives birth to and/or nurtures and raises an offspring. The different roles of parents vary throughout the tree of life, and are especially complex in human culture.- Father :...
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
ratificationRatification is the act of approving and paying for supplies or services provided to and accepted by the government as a result of an unauthorized commitment. It gives official sanction or approval to a formal document such as a treaty or constitution...
of the
United NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and the achieving of world peace...
Convention on the Rights of the ChildThe United Nations Convention on the Rights of the Child, often referred to as CRC or UNCRC, is an international convention setting out the civil, political, economic, social and cultural rights of children. Nations that ratify this international convention are bound to it by international law...
in most countries, terms such as "
residenceResidence is a term used to refer to not always similar concepts in various parts of English law including taxation, immigration, and family law. The remainder of this article deals exclusively with English family law...
" and "
contactIn family law, contact is one of the general terms which denotes the level of contact a parent or other significant person in a child's life can have with that child...
" (known as "visitation" in the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
) have superseded the concepts of "custody" and "access".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 responsibilityIn the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life...
.
Residence and contact issues typically arise in proceedings involving
divorceDivorce or dissolution of marriage is the final termination of a marriage, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between two persons...
(dissolution of marriage),
annulmentAnnulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is retroactive: an annulled marriage is considered never to have existed....
and other legal proceedings where children may be involved. In most
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.Alternatively, jurisdiction is the authority given...
s the issue of which parent the child will reside with is determined in accordance with the
best interests of the childBest interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children...
standard.
Family lawFamily law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
proceedings which involve issues of residence and contact often generate the most acrimonious disputes. While many 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. Court filings quickly fill with mutual accusations by one parent against the other, including
sexualSexual abuse, also referred to as molestation, is the forcing of undesired sexual behavior by one person upon another, when that force falls short of being a sexual assault. The offender is referred to as a sexual abuser or molester...
,
physicalPhysical abuse is abuse involving contact intended to cause feelings of intimidation, pain, injury, or other physical suffering or bodily harm.-Forms of physical abuse:*Striking*Punching*Pushing, pulling*Slapping*Whipping*Striking with an object...
, and emotional abuse, brain-washing,
parental alienation syndromeParental alienation syndrome is term coined by Richard A. Gardner in the early 1980s to refer to what he describes as a disorder in which a child, on an ongoing basis, belittles and insults one parent without justification, due to a combination of factors, including indoctrination by the other...
, sabotage, and manipulation. It is these infrequent difficult custody battles that make the news and sometimes distort the public's perceptions so that appear more prevalent than they are and the court's response appear inadequate.
Forum shoppingForum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
to gain advantage occurs both between nations and where laws and practices differ between areas within a nation, The
Hague ConventionThe Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken from one member nation to another...
seeks to avoid this, also in the United States of America, the
Uniform Child Custody Jurisdiction and Enforcement ActThe Uniform Child Custody Jurisdiction And Enforcement Act is a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA has since been adopted by 48 U.S. States, the District of Columbia, Guam, and the U.S. Virgin Islands...
was adopted by all 50 states, family law courts were forced to defer jurisdiction to the home state.
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 so-called 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 can tolerate and may demand less frequent shifts, but longer blocks of time with each parent.
Terminology
Sole custody is an arrangement whereby only one parent has physical and legal custody of a child.
Joint custodyJoint custody is a court order whereby custody of a child isawarded to both parties. In joint custody both parents are "custodial parents" and neither parent is a non-custodial parents, or in other words the child has two custodial parents....
is an arrangement whereby both parents have legal custody and/or both parents have physical custody.
Physical Custody
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" In joint physical custody, actual lodging and care of the child is shared according to a court-ordered custody schedule (also known as a
"parenting planA Parenting Plan or Custody Agreement is required by the district court along with divorce paperwork when parents divorce or separate. A Parenting Plan allows parents to avoid future conflicts arising from a lack of guidelines in dealing with responsibilities relating to the children...
" or
"parenting schedule"). In many cases, the term "visitation" is no longer used in this context, but rather is reserved to sole custody orders. Terms of art such as "primary custodial parent" and "primary residence" have no legal meaning other than for determining tax status, and both parents are still said to be "custodial parents".
In some states "joint physical custody" creates a presumption of "equal shared parenting". However in most states, joint physical custody only creates an obligation to provide each of the parents with "significant periods" of physical custody so as to assure the child of "frequent and continuing contact" with both parents. Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.
If a child lives with one parent, that parent has
"sole physical custody" and is said to be the
"custodial parent" whereas the other parent is said to be the
"non-custodial parent", but may have visitation rights or
"visitationVisitation may refer to:In law:* In United States Law, the term for the right of a non-custodial parent to visit with their children, elsewhere known as Contact * An official visit, usually for purposes of inspection, and the record of that visit...
" with his/her child.
Joint Physical Custody
Joint physical custody is a
court orderA court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
whereby
custody of a childChild custody and guardianship are legal terms which are sometimes 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...
is awarded to both parties. In joint custody
both parents are "custodial parents" and neither parent is a non-custodial parents, or in other words the child has two custodial parents.
Many states recognize two forms of joint custody: joint physical custody, and joint legal custody. In joint legal custody, both parents share the ability to have access to educational, health, and other records, and have equal decision-making status where the welfare of the child is concerned.
In joint physical custody, which would include
joint physical careJoint Physical Care is when both parents share physical placement of the children. Simply defined, joint physical care allows the child to live with each parent 50% of the time during the year. Parenting plans are established to determine when each parent has the children living with them...
, actual lodging and care of the child is shared according to a court-ordered custody schedule (also known as a
"parenting plan" or
"parenting schedule"). In many cases, the term '
visitationVisitation may refer to:In law:* In United States Law, the term for the right of a non-custodial parent to visit with their children, elsewhere known as Contact * An official visit, usually for purposes of inspection, and the record of that visit...
' is no longer used in these circumstances, but rather is reserved to sole custody orders. In some states joint physical custody creates a presumption of equal shared parenting, however in most states, joint physical custody creates an obligation to provide each of the parents with "significant periods" of physical custody so as to assure the child of "frequent and continuing contact" with both parents. For example, states such as Alabama, California, and Texas do not necessarily require joint custody orders to result in substantially equal parenting time, whereas states such as Arizona, Georgia, and Louisiana do require joint custody orders to result in substantially equal parenting time where feasible. Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.
It is important to note that joint physical custody and joint legal custody are different aspects of custody, and determination is often made separately in many states' divorce courts. E.g., it is possible to have joint legal custody, but for one parent to have sole physical custody In some states this is referred to as Custodial Parent and Non-Custodial Parent.
Also, where there is joint physical custody, terms of art such as "primary custodial parent" and "primary residence" have no legal meaning other than for determining tax status, and both parents are still custodial parents.
Sole Physical Custody
Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. 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 only one parent, that parent has
"sole physical custody" and is said to be the
"custodial parent". The other parent is said to be the
"non-custodial parent", and may have visitation rights or
"visitationVisitation may refer to:In law:* In United States Law, the term for the right of a non-custodial parent to visit with their children, elsewhere known as Contact * An official visit, usually for purposes of inspection, and the record of that visit...
" with his/her child.
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
visitationVisitation may refer to:In law:* In United States Law, the term for the right of a non-custodial parent to visit with their children, elsewhere known as Contact * An official visit, usually for purposes of inspection, and the record of that visit...
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. Where the child will live with both parents, joint physical custody is ordered , and both parent are custodial parents. Where the child will only live with one of the parents, sole physical custody is ordered , and the parent with which the child lives is the custodial parent, the other parent is the non-custodial parent.
Non-custodial Parents
A
"non-custodial parent" is a parent who does not have physical and/or legal custody of his/her 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
visitationVisitation may refer to:In law:* In United States Law, the term for the right of a non-custodial parent to visit with their children, elsewhere known as Contact * An official visit, usually for purposes of inspection, and the record of that visit...
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. Where the child will only live with one of the parents, sole physical custody is ordered , and the parent with which the child lives is the custodial parent, the other parent is the noncustodial parent. Note, however, where the child will live with both parents, joint physical custody is ordered , and both parent are custodial parents.
Criticism of policies concerning determination of child custody
Current policies concerning the determination of child custody have been criticized by certain groups. For more information and rationale, see the main article.
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