CHILD CUSTODY

What is child custody?

Child custody refers to the legal process of determining what parent or legal guardian assumes custody or control over a minor child. Generally, a party to a marriage who has filed for a legal separation or divorce will file a petition for custody. Courts determine which parent or guardian to which to award custody.

What different types of child custody are there?

There are two basic types of custody—sole custody and joint custody. Sole custody means that one parent has legal custody of the child. Joint custody means that the parents share legal custody of the child. Some state laws—such as Arizona—divide joint custody into "joint legal custody" and "joint physical custody."

Other states use different names for custody, such as legal custody, partial custody and shared custody. For example, Pennsylvania law defines legal custody, as the " legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions."

How do courts determine custody for a child?

Most states laws provide that a court is to award custody based on the "best interests" of the child. State laws allow a court to consider numerous factors to determine the best interests of the child. Many states begin with a presumption that it is best for the child to maintain continuous contact of some sort with each parent.

The parent who does not receive legal or primary custody usually will have reasonable visitation rights. This may include every other weekend, some holidays, and time in the summer.

Perhaps the most painful part of divorce involves the issue of child custody. Children are often the unintended victims when a marriage ends, and the law can only do so much to find a solution (iStock).

Perhaps the most painful part of divorce involves the issue of child custody. Children are often the unintended victims when a marriage ends, and the law can only do so much to find a solution (iStock).

Does the race of the parent or child have a legitimate role in custody determinations?

Many courts hold that race cannot be the determinative factor in a child-custody case. Several courts have held that race can play a role in a custody determination. Other courts hold that race cannot be considered in a child custody determination.

In Palmore v. Sidoti (1984; see LegalSpeak, p. 297) the U.S. Supreme Court reversed a change in custody award to a father after the mother cohabitated with a man of another race. The trial court determined that the mother's interracial cohabitation would subject her child to peer pressures and stigma at school. The U.S. Supreme Court determined that the trial court's obsession with race violated the Fourteenth Amendment of the Constitution. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect," the Court wrote.

Other courts have determined that race can play in a factor in racial classifications. In Re Marriage of Gambia and Woodson (Ill. 2006; see LegalSpeak, p. 298), an Illinois appeals court allowed race to be a determinative factor in awarding custody of a couple's biracial child to the African-American mother instead of the Caucasian father. "Indeed, it appears that so long as race is not the sole consideration for custody decisions, it is not an unconstitutional consideration," the state high court wrote.

Can a parent have child custody if he or she has committed a crime?

Some states prohibit or limit parent's custody if they have committed certain sex or violent crimes. For example, Arizona prohibits a parent from having custody or even unsupervised parental time if he or she is a convicted sex offender or a murderer of a former spouse—unless the court makes written findings that the parent poses no significant risk to the child.

LegalSpeak: Arizona Law on Best Interests of the Child—§ 25-403

A. The court shall determine custody, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including:

1. The wishes of the child's parent or parents as to custody.

2. The wishes of the child as to the custodian.

3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.

4. The child's adjustment to home, school and community.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.

7. Whether one parent, both parents or neither parent has provided primary care of the child.

8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.

9. Whether a parent has complied with chapter 3, article 5 of this title.

10. Whether either parent was convicted of an act of false reporting of child abuse or neglect..

B. In a contested custody case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.

Pennsylvania law requires courts to give consideration to the fact that any parent, seeking custody or visitation, has been convicted of homicide, kidnapping, rape, unlawful restraint, prostitution, sexual abuse, indecent exposure or indecent assault. Thus, criminal conduct can have a negative impact on a parent's future custody.

Some states prohibit a court from awarding custody to a parent who has committed murder.

 
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