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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the Child in most countries, terms such as "residence" and "contact" (known as "visitation" in the United States) have superseded the concepts of "custody" and "access".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 (dissolution of marriage), 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. Court filings quickly fill with mutual accusations by one parent against the other, including sexual, physical, and emotional abuse, brain-washing, parental alienation syndrome, sabotage, and manipulation. It is these infrequent yet difficult custody battles that become public via the media and sometimes distort the public's perceptions so that the issues appear more prevalent than they are and the court's response appear inadequate.

Forum shopping to gain advantage occurs both between nations and where laws and practices differ between areas within a nation, The Hague Convention seeks to avoid this, also in the United States of America, the Uniform Child Custody Jurisdiction and Enforcement Act 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 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.

Forms of custody

  • Alternating custody is an arrangement whereby the child/children live for an extended period of time with one parent, and then for a similar amount of time with the other parent. While the child/children are with the parent, that parent retains sole authority over the child/children.
  • Shared custody[1] is an arrangement whereby the child/children live for an extended period of time with one parent, and then for a similar amount of time with the other parent. Opposite to alternating custody, both parents retain authority over the child/children.
  • Bird's nest custody is an arrangement whereby the parents go back and forth from a residence in which the child/children reside, placing the burden of upheaval and movement on the parents rather than the child/children.
  • Joint custody (la garde conjointe in French[2]) is an arrangement whereby both parents have legal custody and/or physical custody.
  • Sole custody (la garde exclusive in French[2]) is an arrangement whereby only one parent has physical and legal custody of the child/children.
  • Split custody (la garde divisée in French[2]) is an arrangement whereby one parent has full-time custody over some children, and the other parent has full custody over the other children.
  • Third-party custody is an arrangement whereby the children do not remain with either biological parent, and are placed under the custody of a third person.

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."[3] 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 plan" 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".[4]

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.[3] 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 "visitation" with his/her child.[5]

Joint physical custody

Joint physical custody is a court order whereby custody of a child is awarded to both parties. In joint custody, both parents are custodial parents and neither parent is a non-custodial parent; 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 care, 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 visitation is no longer used in these circumstances, but rather is reserved to sole custody orders.[6] 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.[5] 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.[7] 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.[4]

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 visitation with his/her child.[5][8][9][10][11]

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.[12] Where the child will live with both parents, joint physical custody is ordered, and both parents 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 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.[12] 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

Main article: Fathers' rights movement

Current policies concerning the determination of child custody have been criticized by certain groups. For more information and rationale, see the main article.

Before the 1970s child custody battles were almost unheard of in the United States.[13]

See also

References

  1. See The Determination of Child Custody in the USA [1] written by Joan B. Kelly, Ph.D. for Stanford University
  2. 2.0 2.1 2.2 See the document published by the Canadian government here. The document is also available for download here
  3. 3.0 3.1 FAMILY CODE SECTION 3000-3007.
  4. 4.0 4.1 See e.g., In re Marriage of Rose and Richardson (App. 2 Dist. 2002) 102 Cal.App.4th 941. Moreover, several courts have also stated, "The term `primary physical custody' has no legal meaning." (In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 759 citing Brody, Whealon, and Ruisi; see also In re Marriage of Richardson, 102 Cal.App.4th 941, 945, fn. 2; In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 714
  5. 5.0 5.1 5.2 CA Codes (fam:3000-3007). Leginfo.ca.gov. URL accessed on 2012-01-09.
  6. Custody | Divorce In California. Divorcelawca.com. URL accessed on 2012-01-09.
  7. Minnesota Presumptive Joint Physical Custody Group Report under House File 1262 (2008) Appendix B "State Definitions of Joint Physical Custody"
  8. Section 30-3-151. Legislature.state.al.us. URL accessed on 2012-01-09.
  9. Laws of New York. Public.leginfo.state.ny.us. URL accessed on 2012-01-09.
  10. Sole Custody legal definition of Sole Custody. Sole Custody synonyms by the Free Online Law Dictionary. Legal-dictionary.thefreedictionary.com. URL accessed on 2012-01-09.
  11. Types of Child Custody. Nolo.com. URL accessed on 2012-01-09.
  12. 12.0 12.1 Uniform Child-Custody Jurisdiction and Enforcement Act(1997), Article 1, Section 102(3).
  13. Child Custody Rights for Fathers | Your Child - Your Divorce. Yourchildyourdivorce.com. URL accessed on 2012-01-09.

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