The care, control, and maintenance of a child, which a court may award to one of the parents following a divorce or separation proceeding.
In most circumstances, state laws provide that biological parents make all the decisions involved in rearing their child — such as residence, education, health care, religious upbringing, and so forth. 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 who 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 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 (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 their divorce decree. The decree describes with whom the child will live, how visitation will be handled, and who will provide financial support. Courts consider a custody award as subject to change until the child involved grows up, 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 This flexibility is intended to allow for the correction of poor or outdated decisions, but consequentially enables some parents to wage bitter custody battles that can last for years.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 this situation, 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.
There are exceptions to this typical arrangement. Some courts have allowed parents to retain joint physical custody, in which the child spends equal time with both parents. Advocates of joint custody say that it lessens the feeling of losing a parent that children may experience after a divorce and is fair to both parents. However, because of the high degree of cooperation it requires, courts resist ordering joint custody if either of the parents does not want it.
Split custody is an arrangement in which the parents divide up 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 (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), in 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
There is much debate about the criteria 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 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 in the 1990s was objectively interpreting the standard in the absence of meaningful guidelines.
Policies of the past offer little guidance. Before the late 1800s fathers had sole rights to custody, because custody 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 replaced maternal preference standards in forty-five 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 [1971]), a noncustody case in which the Supreme Court ruled that the Equal Protection Clause of the Fourteenth Amendment prevents courts from basing opinions on generalizations about either gender.
A 1994 study by the American Bar Association 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 are viewed as arbitrary by many participants. Ultimately, the judge decides the child's future, and not many 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 study of petitions to modify custody found that these awards were highly inconsistent, and 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 in the 1990s still posed 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).
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, Tenn. App. 1989 WL 73229).
Adoption
Adoptions 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, 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 (114 S. Ct. 1, 125 L. Ed. 2d 755 [1993]), and DeBoer 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., an African American three-year-old, should be granted custody, rather than the white foster parents who 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 say 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 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 fourteen-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 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 said 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 neglectful.
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. 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 may deny a subsequent request for permission to move if the move is viewed as an attempt to hinder 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, the U.S. Supreme Court ruled in Thompson v. Thompson, 484 U.S. 174, 108 S. Ct. 513, 98 L. Ed. 2d 512, in 1988 that the existence of two different state custody decrees is not itself a reason for federal involvement under this law.
Termination of Custody
Most types of custody end when the child is emancipated (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.
See: illegitimacy; gay and lesbian rights; family law; parent and child.
