Law & Legal & Attorney Children Law

Child Custody Laws

    History

    • It was common before the 20th century for fathers to gain custody of any children in a divorce proceeding because offspring were considered the father's property. Progress in the field of psychology helped change that misconception and led to the widely championed "tender years doctrine." The concept, which claims that mothers are the best custodial parent for children during their "tender years" if there are no unusual circumstances, remained prevalent until the 1970s.

      Two developments have since helped repudiate the tender years doctrine in many jurisdictions: (1) increased realization that both previous gender-based concepts were flawed in similar ways and (2) the fathers' rights movement, a backlash against perceived favoring of mothers in child custody battles and discrimination against fathers.

    Function

    • Instead of automatically favoring fathers or mothers, child custody laws currently seek to serve the "best interests" of children. The accompanying belief is that the primary caregiver, or whichever parent spent the most time caring for any children during the marriage, is the best custodial parent for the children following a divorce.

      As a result, the primary aim of the court in custody cases is to decide which parental relationship is most important for maintaining consistency and a nurturing lifestyle for children. Laws pertaining to child custody fall into four major categories, namely those that govern child support, legal custody, physical custody and visitation rights.

    Child Support

    • The Child Support Enforcement Act of 1984 established the practice of calculating child support payments based on guidelines and formulas that vary by state, always taking into account the total amount needed to care for children, in addition to the income of the non-custodial parent, who is responsible for making the support payments.

    Legal and Physical Custody

    • Legal custody refers to the decisions concerning a child's life, while physical custody concerns where the child lives. Laws that govern the first can grant custody to one or both parents jointly, which allows the legal custodian(s) to make choices about issues related to the child's education, medical treatment and religion. Laws regarding physical custody can grant custody to one or both parents jointly, as well.

    Visitation

    • In the case of sole physical custody, the non-custodial parent has visitation rights. The court can prescribe a schedule for time spent with any children or the visits can be mutually agreed upon by both parents at their convenience. If the non-custodial parent has a history of abusive behavior, however, supervised visitation will be imposed, which requires the presence of an adult approved by the court, who must not be the custodial parent, during every visit.

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