CHILD CUSTODY
The care, control, and maintenance of a child,
which a court may award to one of the parents following
a DIVORCE or separation proceeding.
Under most circumstances, state laws provide
that biological parents make all decisions
that are involved in rearing their child—such as
residence, education, HEALTH CARE, and religious
upbringing. Parents are not required to
secure the legal right to make these decisions if
they are married and are listed on the child’s
birth certificate. However, if there is disagreement
about which parent has the right to make
these decisions, or if government officials
believe that a parent is unfit to make the decisions
well, then family courts or juvenile courts
will determine custody.
District and state courts base their decisions
on state laws, which vary greatly among states. If
a case challenges the constitutionality of a state
law or—in rare instances—a state’s jurisdiction
(i.e., its right to decide the case), then the U.S.
Supreme Court may issue an opinion.
Divorced Parents
When custody must be spelled out because
of a couple’s divorce, the custody arrangement
usually becomes part of the divorce decree. The
decree names the parent with whom the child
will live, how visitation will be handled, and who
will provide financial support. Courts consider a
custody award to be subject to change until the
child comes of age, and in most states proof of a
“change in circumstances”may overturn an earlier
award. This flexibility is intended to allow
for the correction of poor or outdated decisions,
but it consequentially enables some parents to
wage bitter custody battles that can last for years.
In a typical divorce involving at least one
child, permanent physical custody is awarded to
the parent with whom the child will live most of
the time. Usually, the custodial parent shares
joint legal custody with the noncustodial parent,
meaning that the custodial parent must inform
and consult with the noncustodial parent about
the child’s education, health care, and other concerns.
In such situations, courts may order visitation,
sometimes called temporary custody,
between the child and the noncustodial parent.
A clear schedule with dates and times may be
written into the order, or a court may simply
state that visitation should be reasonable. CHILD
SUPPORT is a common requirement and is paid
by the noncustodial parent to the custodial parent
as assistance in raising the child.
The typical arrangement is subject to some
exceptions. Some courts allow parents to retain
joint physical custody, in which the child spends
equal time with both parents. In California, the
Family Code, for example, establishes a presumption
that joint custody is in the child’s best
interest, thus placing joint custody as a preferred
option when courts make custody determinations
in that state. Cal. Fam. Code. Ann. § 3040
(West 1995). Advocates of joint custody argue
that it lessens the feelings of losing a parent that
children may experience after a divorce, and that
it is fair to both parents. Many courts, on the
other hand, resist ordering joint custody if either parent does not want it, due to the high degree
of cooperation it requires, especially when the
children involved are young or if the parents live
a great distance apart, such as in separate states.
Split custody is an arrangement in which the
parents divide custody of their children, with
each parent being awarded physical custody of
one or more children. In general, courts try not
to separate siblings when awarding custody.
Unmarried Parents
Where a child’s parents were never married,
most states provide that the child’s biological
mother has sole physical custody unless the biological
father takes steps to have himself considered
for custody. Those steps include obtaining a
court’s finding of PATERNITY and filing a petition
for custody. In some states, this is a bifurcated
(i.e., two-step) process; in others, the two
steps are combined. An unwed father usually
cannot win custody from a mother who is a
good parent, but he may have priority over other
relatives, foster parents, or strangers who want
to adopt his child.
The government must provide a child’s
unwed parents with the opportunity to step forward
if it is seeking custody. In Stanley v. Illinois,
405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551
(1972), the U.S. Supreme Court held that under
the EQUAL PROTECTION CLAUSE of the FOURTEENTH
AMENDMENT, an unwed father was
entitled to a hearing to determine his fitness as a
parent before the state could obtain custody of
his children following their mother’s death.
Criteria for Custody Awards
Much debate about CHILD CUSTODY has
focused upon the criteria that the courts use in
awarding permanent physical custody in cases
where two biological parents disagree. Noncustodial
parents of both genders have long charged
that judges’ decision making is ARBITRARY and
that it does not focus on the child. In response to
this criticism, many states have adopted a standard
that places primary emphasis on the best
interests of the child. The challenge for courts
since the 1990s has been to interpret the standard
objectively in the absence of meaningful
guidelines.
Policies of the past offer little guidance.
Before the late 1800s, fathers had sole rights to
custody, because it was closely tied to inheritance
and PROPERTY LAW. Mothers had no such
rights. Beginning in the nineteenth century,
courts began to award custody of young boys
and of girls of all ages solely to mothers on the
presumption that mothers are inherently better
caretakers of young children.
Until 1970, most states encouraged or
allowed this maternal preference, also called the
TENDER YEARS DOCTRINE, and mothers almost
always received custody. Eventually, many state
courts found this preference to be unconstitutional,
and gender-neutral custody statutes had
replaced maternal-preference standards in 45
states by 1990. A catalyst for this change was
Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed.
2d 225 (197]), a noncustody case in which the
U.S. Supreme Court ruled that the Equal Protection
Clause of the Fourteenth Amendment prevents
courts from basing opinions on
generalizations about either gender.
A 1994 AMERICAN BAR ASSOCIATION study
of divorces in Utah showed that after maternal
preference in divorce cases was declared unconstitutional
in that state in 1986, the number of
mothers who received sole custody decreased,
the number of joint legal custody awards
increased, and the number of specific-visitation
schedules increased. The researchers concluded
that although the proportion of fathers who
received sole custody did not necessarily go up,
the net result was more involvement by fathers
after divorce.
No straightforward criterion has replaced
the simple—although unconstitutional—presumption
that children belong with one gender
or the other. The decisions that result are often
inconsistent, and many participants view them
as arbitrary. Ultimately, the judge decides the
child’s future, and few guidelines are provided to
ensure that the decision is objective.
Nevertheless, courts have instituted some
mechanisms to determine a child’s best interests.
GUARDIANS AD LITEM (caretakers “for the lawsuit”)
or friends are sometimes appointed to
represent the child’s interests and to advocate in
court on the child’s behalf. Custody evaluations
may be ordered, in which court-services personnel
visit each parent’s home and evaluate each
parent’s plan for caring for the child. The fact
that one parent has been the child’s primary
caretaker is often considered but is not enough
to guarantee a custody award.
Changing Custody Awards
Standards for changing custody awards are
similarly vague, although most states’ criteria
allow courts to modify custody only when the circumstances of the custodial parent or of the
children—not of the noncustodial parent—have
changed. A 1993 Stanford University study of
petitions to modify custody found that these
awards were highly inconsistent, and it attributed
them in many cases to personal gender
biases held by judges.
Social Issues: Sexual Orientation and Race
Social issues are sometimes slow to affect
custody decisions. Homosexual parents still
pose dilemmas for judges. Although in many
cases homosexual parents have won or retained
custody, the Virginia Supreme Court in 1995
reinstated a trial court order awarding custody
of a boy to his grandmother because the lesbian
mother’s sexual orientation was deemed potentially
harmful to the boy (Bottoms v. Bottoms,
249 Va. 410, 457 S.E. 2d 102). Similarly, the
Alabama Supreme Court in Ex parte H.H., 830
So. 2d 21 (Ala. 2002) refused to return custody
of a mother’s children to her, despite the
mother’s assertions that the father, the custodial
parent, had abused the children. Although the
majority in the decision did not address the fact
that the mother was a lesbian, a concurrence
written by the chief judge of the court suggested
that the court should consider homosexuals as
presumptively unfit to have custody of minor
children. In contrast to these types of decisions,
many courts have been more willing to grant
custody to gay and lesbian parents when the parents
are a same-sex couple. See also GAY AND
LESBIAN RIGHTS.
Although the U.S. Supreme Court ruled in
1984 that removing custody from a white child’s
mother because of her marriage to a black man
would be discriminatory (Palmore v. Sidoti, 466
U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421), a
Tennessee court in 1986 removed custody from
a white mother who was living with a black man.
In that case, when one of the children’s
guardians died two years later, the mother, who
had by then married the man, was awarded custody
of one of her children (Smith v. Smith, 1989
WL 73229 (Tenn. App).
Adoption
ADOPTION can provide courts with another
source of custody disputes. Most state laws
require that both birth parents give consent
before their child can be adopted. Such a law was
at issue in a custody battle over Jessica DeBoer,
who was born in Iowa in 1991 and adopted by a
Michigan couple. DeBoer’s birth mother later
married DeBoer’s birth father, and they sought
and won custody of DeBoer in Iowa, based on
the father’s never having consented to the adoption.
The adoptive parents then won in the
Michigan courts, based on an analysis of the
child’s best interests. On appeal, the Michigan
Supreme Court reversed, declaring that under
federal law, Iowa had jurisdiction in this case,
and that unless a child’s birth parents are unfit,
an unrelated person may not retain custody. The
U.S. Supreme Court agreed, in DeBoer by Darrow
v. DeBoer, 509 U.S. 1301, 114 S. Ct. 1, 125 L.
Ed. 2d 755 (1993), and Jessica was returned to
her birth parents.
Family ties are often a compelling factor for
judges even when birth relatives other than parents
are involved. For example, the Minnesota
Supreme Court ruled in 1992 in Matter of Welfare
of D. L., 486 N.W.2d 375 (Minn.), that the
biological grandparents of Baby D., a three-yearold
African-American, should be granted custody,
rather than the white foster parents who
had raised her from birth. The case convinced
the Minnesota Legislature to change a law (M. S.
A. § 259. 28, subd. 2) providing for same-race
preference in adoptions, but race was not the
deciding factor in the case: The court based its
decision on reuniting Baby D. with her birth relatives
and her siblings, of whom the grandparents
also had custody.
Critics of removing children from parents
and from parental figures to whom they have
become attached argue that the rupture is too
difficult to overcome and that children suffer
from imperfect child-custody laws. The National
Conference of Commissioners on Uniform State
Laws approved in 1994 a model adoption statute,
which was designed to reduce the chances that
custody will be changed after children have
become attached to parent figures. The model
statute provides guidelines for birth parents and
adoptive parents to follow before an adoption in
order to prevent custody battles afterward.
In the 1990s, courts appeared to place more
importance on child-caretaker attachment and
in some cases even denied custody to birth parents
in order to uphold this attachment. A
Florida judge ruled in 1993 that 14-year-old
Kimberly Mays could choose not to see her birth
parents, from whom she had been separated at
birth by a hospital error (Twigg v. Mays, 1993
WL 330624 [Fla. Cir. Ct.]). The decision was
based on the length of time she had spent with her nonbiological family and her attachment to
it.
In 1978, the U.S. Supreme Court ruled that
the adoption of a child by the child’s stepfather
did not violate the DUE PROCESS rights of the
child’s unwed biological father. In Quilloin v.
Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d
511 (1978), the Court decided that the adoption
was in the best interests of the child, and wrote
that because that particular biological father had
participated very little in rearing the child, he
did not have the same rights under the Equal
Protection Clause that a more involved father
would have.
Terminating Parental Rights
Owing in part to a national surge in reports
of CHILD ABUSE and neglect in the 1980s and
1990s, courts and society faced questions of
whether abusive or dangerously neglectful parents
should retain custody of their own children.
It is the government’s role to step in when a
child is not being safely cared for, and if parents
are judged unfit, the local social-services department
may seek to terminate their parental rights
and to free the child for adoption or alternative
care. A child may be placed in foster care while a
custody case is pending.
Before removing a child from her or his parents,
the state must produce “clear and convincing”
evidence that terminating parental rights is
the best option for the child. This was clarified
in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982). The case arose
after a New York County social-services department
successfully brought neglect proceedings
in state court against the Santoskys, a couple
with three children. The U.S. Supreme Court
found that the state’s standard—“a fair preponderance
of evidence” —was too low for deciding
something as important as a family’s future.
Courts and Jurisdiction
Most custody decisions are made by family
courts. However, where a juvenile court has
found that a minor poses a threat to society if
current custody arrangements continue, the
juvenile court may turn over physical custody to
the state. The court may simultaneously issue a
so-called CHIPS petition, declaring the “child in
need of protective services,” if the current custodian
is abusive or negligent.
Jurisdiction is an issue that has received
much attention. A court has the power to settle
a custody dispute if a child lives for at least six
months in the location where the court has
jurisdiction or if it is demonstrated that the
court has the closest connection with the child.
All states have adopted the Uniform Child Custody
Jurisdiction Act, originally adopted in
1967, which provides that a state’s court will not
accept a custody case unless that state has original
jurisdiction or the state with original jurisdiction
relinquishes it. All states have adopted
the original uniform law. This law was updated
in 1997 with the passage of the Uniform Child
Custody Jurisdiction and Enforcement Act,
which added a number of provisions for the
enforcement of child-custody orders from other
states. As of 2003, more than 30 states, including
the District of Columbia, had adopted the new
law, and several others were considering its
adoption. The Hague Convention Treaty provides
similar reciprocity between nations that
are parties to it (implemented at 42 U.S.C.A.
§§ 11601–11610 [Supp. 1993]).
A parent’s interstate move sometimes blurs
jurisdictional lines. For this reason, courts may
restrict the geographic area in which a parent
may live as part of the custody order, or they
may deny a subsequent request for permission
to move if the move is viewed as an attempt to
hinder the other parent’s visitation.
Parental Kidnapping
Parental KIDNAPPING occurs when one parent
deprives the other of his or her legal right to
custody or visitation by illegally taking the child
out of the jurisdiction. It is outlawed by the federal
Parental Kidnapping Prevention Act (28
U.S.C.A. § 1738A [Supp. 1993]), which applies
the FULL FAITH AND CREDIT CLAUSE of the U.S.
Constitution to child-custody cases, meaning
that each state must abide by custody decisions
made by another state’s courts if the other state
would be bound by those decisions. The law was
enacted to respond to cases in which one parent
leaves the state that has jurisdiction; however, in
1998 the U.S. Supreme Court ruled in Thompson
v. Thompson, 484 U.S. 174, 108 S. Ct. 513, 98 L.
Ed. 2d 512, that the existence of two different
state-custody decrees is not, itself, a reason for
federal involvement under this law.
The Parental Kidnapping Prevention Act
often works in concert with state laws, such as
state adoptions of the Uniform Child Custody
Jurisdiction and Enforcement Act, in order to
facilitate the return of a child to the state that
has proper jurisdiction. Many of the custody provisions in the federal law are similar to those
in the corresponding state laws.
Termination of Custody
Most types of custody end when the child is
emancipated (i.e., considered a legal adult) by
becoming self-supporting, by marrying, or by
reaching the age of majority as specified by state
law. Not until then does family court lose its
power to determine custody.
FURTHER READINGS
Bahr, Stephen J., et al. 1994. “Trends in Child Custody
Awards: Has the Removal of Maternal Preference Made
a Difference?” Family Law Quarterly (summer).
Horne, Jennifer. 1993. “The Brady Bunch and Other Fictions:
How Courts Decide Child Custody Disputes
Involving Remarried Parents.” Stanford Law Review
(July).
CROSS-REFERENCES
Illegitimacy; Gay and Lesbian Rights; Family Law; Parent
and Child.
