Child custody
In family law, child custody describes 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.
Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as parental responsibility, "residence" and "contact" have superseded the concepts of "custody" and "access" in some member nations. 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.
Legal custody
Legal custody involves the division of rights between the parents to make important life decisions relating to their minor children. Such decisions may include choice of a child's school, physician, medical treatments, orthodontic treatment, counseling, psychotherapy and religion.Legal custody may be joint, in which case both parents share decision-making rights, or sole, in which case one parent has the rights to make key decisions without regard to the wishes of the other parent.
Physical custody
Physical custody establishes where a child lives and who decides day-to-day issues regarding the child. If a parent has physical custody of a child, that parent's home will normally be the child's legal residence. The times during which parents provide lodging and care for the child is defined by a court-ordered custody parenting schedule, also known as a parenting plan.Forms
The different forms of physical custody include:- Sole custody, an arrangement whereby only one parent has physical custody of the child. The other non-custodial parent would typically have regular visitation rights.
- Joint physical custody, a shared parenting arrangement where both parents have the child for approximately equal amounts of time, and where both are custodial parents.
- Bird's nest custody, a type of joint physical custody whereby the parents go back and forth from a residence in which the child always reside, placing the burden of upheaval and movement on the parents rather than the child.
- Split custody, an arrangement whereby one parent has sole custody over some children, and the other parent has sole custody over the remaining children.
- Alternating custody, an arrangement whereby the child lives for an extended period of time with one parent and an alternate amount of time with the other parent. This type of arrangement is also referred to as divided custody.
- Third-party custody, an arrangement whereby the children do not remain with either biological parent, and are placed under the custody of a third person.
Joint physical custody
Sole custody
Sole physical custody means that a child resides with only one parent, while the other parent may have visitation rights with their child. The former parent is the custodial parent while the latter is the non-custodial parent.Prevalence
Comparing 36 western countries in 2005/06, Thoroddur Bjarnason studied the proportion of 11-15-year-old children living in different child custody arrangements. The percent of children living in intact families with both their mother and father were highest in North Macedonia, Turkey, Croatia and Italy, while it was lowest in the United States, Romania, Estonia and Latvia. In the other anglophone countries, it was 70% in the United Kingdom, 71% in Canada and 82% in Ireland. Among the children who did not live with both their parents, the percent in a shared parenting versus sole custody arrangement was highest in Sweden, Iceland, Belgium, Denmark, Italy and Norway. At 2% or less, it was lowest in Ukraine, Poland, Croatia, Turkey, the Netherlands and Romania. It was 5% in Ireland and the United States and 7% in Canada and the United Kingdom. Shared parenting is increasing in popularity, and by 2016/17, the percentage in Sweden had increased to 34% among the 6-12 year old age group and 23% among 13 to 18-year-old children.Jurisdiction
A child custody case must be filed in a court that has jurisdiction over the child custody disputes. Jurisdiction normally arises from the presence of the children as legal residents of the nation or state where a custody case is filed. However, some nations may recognize jurisdiction based upon a child's citizenship even though the child resides in another country, or may allow a court to take jurisdiction over a child custody case either on a temporary or permanent basis based upon other factors.Forum shopping may occur both between nations and, where laws and practices differ between areas, within a nation. If a plaintiff files a legal jurisdiction that the plaintiff believes to have more favorable laws than other possible jurisdictions, that plaintiff may be accused of forum shopping.
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.
The "best interest" rule
In the context of cases regarding custody, the "best interest" rule suggests that all legal decisions made to accommodate the child are made with the goal of ensuring a child's happiness, security and overall well being. There are many different factors that go into the decision that is made in a child's best interest, which include: the child's health, environment and social interests, the relationship each parent has with the child, and the ability of each parent to address the needs of the child.Problems with the "best interest" rule
The "best interest" rule has been considered to be a standard in determining child custody for the most recent 40 years in history. Although it has been so widely favored amongst legal systems, there are some deficiencies to the concept. Robert Mnookin, an American lawyer, author, and a Professor of Law at Harvard Law School, claimed that the best interest rule is indeterminate. It is considered to be a broad and vague set of guidelines that only leads to increased conflict amongst the parents instead of promoting cooperation that would actually lead to the best interest of the child being met. Some of these problems specifically include:- The current test for best interest generates high costs, which can impose on both the court and opposing parties.
- The verifiability of the best interest standard is hard to achieve. The privacy of family life makes assessing the evidence provided difficult. The best interests standard only worsens the problem, in which both parties are encouraged to introduce evidence of the quality of their parenting.
- In an example of divorce, both parties are experiencing high levels of stress, which could make for a poor basis for assessing family behaviors and relationships.
Economics
In an economic analysis, Imran Rasul has concluded that if one parent values child quality more than the other, the spouses prefer that parent to have sole custody, while joint custody is optimal for parents with relatively equal valuation of child quality. He has further concluded that "joint custody is more likely to be optimal when divorce costs fall, so that children retain contact with both parents" and that "this may improve child welfare".Gender issues
As the roles of children have changed over the past couple of centuries from economic assets to individuals, so has the role of mothers and fathers in who would provide the best care for the child. Many courts and judges lean more towards the maternal figure when there is a trial for custody of a child. According to Family Change and Time Allocation in American Families study done at UCLA, women allocate about 13.9 hours a week to child care while men allocate about 7 hours a week. Additionally, according to the Current Population Survey, in 2013, custodial mothers were more likely to have child support agreements comparative to custodial fathers.Women's and father's rights activists often become involved in matters of child custody since the issue of equal parenting is controversial, most of the time combining the interests of the child with those of the mothers or fathers. Women's rights activists are concerned about "family violence, recognizing primary caregiving, and inequities associated with awarding legal joint custody without a corresponding responsibility for child care involvement". Father's rights activists are more concerned about their "disenfranchisement from children’s lives, the importance of parent-child attachment, combating parental alienation, and access enforcement". Courts cannot determine an individual child's best interests with certainty, and judges are "forced to rely on their own interpretations of children’s interests, and idiosyncratic biases and subjective value-based judgments, including gender bias". Judges are currently using the ‘best interest of the child’ standard that was made to consider the interests of the child before the mothers and fathers, including the child's mental, emotional, physical, religious, and social needs.
Child poverty, lack of resources, and women's economic dependence on men all remain pressing issues that are not effectively noted during the custody trials.