Child custody laws in the United States

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Child custody, conservatorship and guardianship describe the legal and practical relationship between a parent and the parent's child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.

Contents

Custody issues typically arise in proceedings involving divorce, as well as in paternity, annulment, and other legal proceedings in which children are involved. In most jurisdictions the issue of with which parent the child will reside is determined in accordance the best interests of the child standard. [1] In rare cases custody may be awarded to somebody other than a parent, but only after the fundamental right afforded to biological parent's has been overcome or where the third party has an established role that is in the manner of a parent. When a child's parents are not married it is necessary to establish paternity before issues of child custody or support may be determined by a court.

Family law proceedings that involve issues of custody and visitation often generate the most acrimonious disputes. In extreme cases, one parent may accuse the other of trying to "turn" the child(ren) against him or her, allege some form of emotional, physical, or even sexual abuse by the other parent, the "residential" parent may disrupt the other parent's contact or communication with the child(ren), or a parent may remove the child from the jurisdiction in violation of court orders, so as to frustrate the other parent's contact with the children. [2]

Courts and legal professionals within the U.S. may use terms such as "parenting time" instead of custody and visitation. [3] The goal of the newer, alternative terminology is to eliminate the distinction between custodial and noncustodial parents, and to better focus on the best interests of the children by crafting schedules that meet the developmental needs of the children. [4] For example, small children may 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.

History

In the decades leading up to the 1970s child custody battles were rare, and in most cases the mother of minor children would receive custody. [5] Since the 1970s, as custody laws have been made gender-neutral, contested custody cases have increased as have cases in which the children are placed in the primary custody of the father. [5]

State law

New York

Where there are children of the marriage residing in New York State and under the age of 18, a demand for custody is mandatory in divorce actions. Whether the parents are divorced or just separated one parent cannot demand the child stays between the parents. Where the children reside outside New York State custody may not be determined, except in some instances by stipulation. Custody may not be awarded to a person other than the father or mother, except under unusual circumstances that require a hearing. In unusual circumstances, children may be placed with a third party such as a grandparent or a sibling. [6] Children under the age of 18 must be supported by both parents to the extent that they are able to support the children under the provisions of the Child Support Standards Act.

New Jersey

New Jersey courts require all divorcing parents with minor children to complete a mandatory Parents' Education Program before granting a divorce per the Parent's Education Act. The law, N.J.S.A 2A:34-12.3 [7] , enacted in 1999, was established to promote cooperation between the parties and to assist in resolving issues that arrive during the divorce process that may impact a child. However, courts will not refer a party to the program if a restraining order has been issued pursuant to the Prevention of Domestic Violence Act or if either party is restrained from contact under the criminal or civil laws of New Jersey or any other state. [8]

Texas

In the State of Texas, rather than using the term custody, a parent who is granted custody of a child by a court is deemed a "conservator". Conservatorship is divided into two categories, a "managing conservator" and a "possessory conservator." [9]

Conservatorship orders divide various parental rights and duties, including

(1) the right to make major decisions regarding the children;
(2) the right to have physical possession of the children; and
(3) the duty to financially support the children among the parents after the divorce.

Rights of grandparents

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, and that right includes limiting the children’s access to their grandparents.

In In re O'Donnell-Lamont (2004), the Oregon Supreme Court affirmed an Oregon statute requiring a presumption 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. [13] Likewise, the court upheld the requirement set forth mandating that either a child-parent relationship or a long-term personal relationship existed between the child and non-blood related intervenor under the concept of the fundamental right of the parent. The court noted that the issue in itself allowed for an intervenor with a legitimate purpose to come forth, and through the statute's requirement of first showing the relationship, second showing the rebuttal of the presumption, and finally judging the choice on the best interest of the child standard, the fundamental right of the parent was being given proper Due Process Requirements under the 14th Amendment Due Process Clause.

Military parents and child custody

In the 21st century, a new body of case law for custody of children in military families is developing due to more frequent deployments of both mothers and fathers in active duty, as well as dual-career military couples. [14]

Contrast with other countries

Following ratification of the United Nations Convention on the Rights of the Child in most countries other than the United States (which has not ratified the convention), terms such as "custody" and "access" (known as "visitation" in the United States) have been superseded in many countries by the concepts of "residence" and "contact". 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 standards, see parental responsibility.

See also

Related Research Articles

Family law is an area of the law that deals with family matters and domestic relations.

Child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other similar relationship. Child maintenance is paid directly or indirectly by an obligor to an obligee for the care and support of children of a relationship that has been terminated, or in some cases never existed. Often the obligor is a non-custodial parent. The obligee is typically a custodial parent, a caregiver, or a guardian.

Paternity law refers to body of law underlying legal relationship between a father and his biological or adopted children and deals with the rights and obligations of both the father and the child to each other as well as to others. A child's paternity may be relevant in relation to issues of legitimacy, inheritance and rights to a putative father's title or surname, as well as the biological father's rights to child custody in the case of separation or divorce and obligations for child support.

Best interests or best interests of the child is a child rights principle, which derives from Article 3 of the UN Convention on the Rights of the Child, which says that "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". Assessing the best interests of a child means to evaluate and balance "all the elements necessary to make a decision in a specific situation for a specific individual child or group of children".

Grandparent visitation is a legal right that grandparents in some jurisdictions may have to have court-ordered contact with their grandchildren. In no case is contact between grandparents and children considered an inalienable right.

A parenting plan is a child custody plan that is negotiated by parents, and which may be included in a marital separation agreement or final decree of divorce. Especially when a separation is acrimonious to begin with, specific agreements about who will discharge these responsibilities and when and how they are to be discharged can reduce the need for litigation. Avoiding litigation spares parties not only the financial and emotional costs of litigation but the uncertainty of how favorable or unfavorable a court's after-the-fact decision will be. Moreover, the agreement itself can authorize the employment of dispute-resolution methods, such as arbitration and mediation, that may be less costly than litigation.

Joint custody is a court order whereby custody of a child is awarded to both parties. In the United States, there are two forms of joint custody, joint physical custody and joint legal custody. In joint physical custody, the lodging and care of the child is shared according to a court-ordered parenting schedule with equal or close to equal parenting time. In joint legal custody, both parents share the ability to make decisions about the child, regarding e.g. education, medical care and religion, and both can access their children's educational and health records.

In the United Kingdom and the nations of the European Union, parental responsibility refers to the rights and privileges which underpin the relationship between the children and the children's parents and those adults who are granted parental responsibility by either signing a 'parental responsibility agreement' with the mother or getting a 'parental responsibility order' from a court. The terminology for this area of law now includes matters dealt with as contact and residence in some states.

Child custody is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions child custody is determined in accordance with the best interests of the child standard.

In family law, contact, visitation and access are synonym terms that denotes the time that a child spends with the noncustodial parent, according to an agreed or court specified parenting schedule. The visitation term is not used in a shared parenting arrangement where both parents have joint physical custody.

Troxel v. Granville, 530 U.S. 57 (2000), is a case in which the Supreme Court of the United States, citing a constitutional right of parents to direct the upbringing of their children, struck down a Washington law that allowed any third party to petition state courts for child visitation rights over parental objections.

<span class="mw-page-title-main">Tender years doctrine</span> Historic legal principle in English family law

The tender years doctrine is a legal principle in family law since the late 19th century. In common law, it presumes that during a child's "tender" years, the mother should have custody of the child. The doctrine often arises in divorce proceedings.

The fathers' rights movement in the United States is a group that provides fathers with education, support and advocacy on family law issues of child custody, access, child support, domestic violence and child abuse. Members protest what they see as evidence of gender bias against fathers in the branches and departments of various governments, including the family courts.

The fathers' rights movement has simultaneously evolved in many countries, advocating for shared parenting after divorce or separation, and the right of children and fathers to have close and meaningful relationships. This article provides details about the fathers' rights movement in specific countries.

<span class="mw-page-title-main">International child abduction in Japan</span>

International child abduction in Japan refers to the illegal international abduction or removal of children from their country of habitual residence by an acquaintance or family member to Japan or their retention in Japan in contravention to the law of another country. Most cases involve a Japanese parent taking their children to Japan in defiance of visitation or joint custody orders issued by Western courts. The issue is a growing problem as the number of international marriages increases. Parental abduction often has a particularly devastating effect on parents who may never see their children again.

A noncustodial parent is a parent who does not have physical custody of his or her minor child as the result of a court order. When the child lives with only one parent, in a sole custody arrangement, then the parent with which the child lives is the custodial parent while the other parent is the non-custodial parent. The non-custodial parent may have contact or visitation rights. In a shared parenting arrangement, where the child lives an equal or approximately equal amount of time with the mother and father, both are custodial parents and neither is a non-custodial parent.

A parenting coordinator (PC) is a court-appointed professional psychologist or lawyer who manages ongoing issues in high-conflict child custody and visitation cases.

Supervised visitation allows parents in high conflict or high risk situations access to their children in a safe and supervised environment. The noncustodial parent has access to the child only when supervised by another adult. Supervised visitation is used to protect children from potentially dangerous situations while allowing parental access and providing support for the parent child relationship.

The Probate and Family Court of Massachusetts has jurisdiction over family matters such as divorce, paternity, child support, custody, visitation, adoption, termination of parental rights, and abuse prevention. Probate matters include jurisdiction over wills, administrations, guardianships, conservatorships and change of name. The Court also has general equity jurisdiction.

References

  1. ↑ "Determining the Best Interests of the Child" (PDF). Child Welfare Information Gateway. Children's Bureau. Archived (PDF) from the original on 2015-07-18. Retrieved 16 May 2017.
  2. ↑ Saunders, Daniel G. (Jun 2016). "The Need to Carefully Screen for Family Violence When Parental Alienation is Claimed" (PDF). Michigan Family Law Journal. 46 (6): 7–11. Retrieved 16 May 2017.
  3. ↑ "Custody & Parenting Time (Visitation)" (PDF). California Courts. Judicial Council of California. Retrieved 16 May 2017.
  4. ↑ Demo, David H. (2010). Beyond the Average Divorce. SAGE. pp. 67–68. ISBN   978-1412926850.
  5. 1 2 Shiono, Patricia H. (1994). "Epidemiology of Divorce". The Future of Children. 4 (1): 15–28. doi:10.2307/1602475. JSTOR   1602475. PMID   7922277.
  6. ↑ "Custody Disputes Between Non-Parents and Parents" (PDF). New York State Kinship Navigator. Catholic Charities Family and Community Services. Retrieved 12 January 2024.
  7. ↑ New Jersey General Assembly. "N.J.S.A. 2A:34-12.3". Statutes of New Jersey. New Jersey.
  8. ↑ New Jersey General Assembly. "N.J.S.A. 2A:34-12.5". Statutes of New Jersey. New Jersey.
  9. ↑ "Child Custody in Texas". TexasLawHelp.org. Pro Bono Net. Retrieved 2 July 2017.
  10. 1 2 "What to Expect in Texas Family Law Court" (PDF). Archived (PDF) from the original on 2013-03-19. Retrieved 19 September 2017.
  11. ↑ "Texas Family Code, Sec. 153.005". Texas Legislature. Retrieved 2 July 2017.
  12. ↑ "Texas Family Code, Sec. 153.006". Texas Legislature. Retrieved 2 July 2017.
  13. ↑ "In re Marriage of O'Donnell-Lamont, 337 Or. 86, 101, 91 P.3d 721, 730 (2004)". Google Scholar. Retrieved 17 May 2017.
  14. ↑ United States (2013). Military parents and child custody: issues, considerations, and cases. Military and veteran issues. David F. Burrelli, Michael A. Miller, Rayan M. Pauwels (eds.). New York: Nova Publishers. ISBN   978-1628089325.
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