Child custody laws in the United States

Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child. Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as "custody" and "access" (known as "visitation" in the United States) have been superseded by the concepts of "residence" and "contact". 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. For a discussion of the new international standards, see parental responsibility.

General discussion

Residence and contact issues typically arise in proceedings involving dissolution of marriage, annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard, but only after the proper fundamental right afforded to biological parent's has been disproven or shown to be inaccurate. In Troxel v. Granville(2000), the U.S. supreme Court affirmed that a biological parent holds a fundamental right in choosing how to raise one's children as they see fit. Later in the case of In re O'Donnell-Lamont(2004), the court affirmed a Oregon statute requiring a presumption the parent act's in the child's best intrests to be met prior to applying the best intrests of the child standard, placing both parties on equal footing. Likewise, the court upheld the requirement set forth mandating a child-parent relationship or long-term personal relationship existed between the child and non-blood related intervenor under the concept of the fundamental right of the parent. The court noted that the issue in itself allowed for a intervener with a legitamate purpose to come forth, and through the statute's requirement of first showing the relationship, second showing the rebuttal of the resumption, and finally judging the choice on the best intrest of the child standard, the fundamental right of the parent was being given proper Due Process Requirements under the 14th Amendment Due Process Clause.

Family law proceedings which involve issues of residence and contact often generate the most acrimonious disputes. It is not uncommon for one parent to accuse the other of trying to "turn" the child(ren) against him or her, allege some form of emotional, physical, or even sexual abuse by the other parent, or for the "residence" parent to disrupt the other parent's contact or communication with the child(ren). Cases of parents removing children from the jurisdiction in violation of court orders, so as to frustrate the other parent's contact with the children, are not unusual.

Courts and legal professionals are beginning to use the term parenting schedule instead of custody and visitation. The new terminology eliminates the distinction between custodial and noncustodial parents, and also attempts to build upon the so-called best interests of the children by crafting schedules that meet the developmental needs of the children. For example, younger children need shorter, more frequent time with parents, whereas older children and teenagers can tolerate and may demand less frequent shifts, but longer blocks of time with each parent.

The law in the United States

New York State

Where there are children of the marriage residing in New York State and under the age of 18, a demand for custody is mandatory in divorce actions. Whether the parents are divorced or just separated one parent cannot demand the child stays between the parents. Where the children reside outside New York State custody may not be determined, except in some instances by stipulation. Custody may not be awarded to a person other than the father or mother, except under unusual circumstances which require a hearing. Children under the age of 21 must be supported by both parents to the extent that they are able to support the children under the provisions of the Child Support Standards Act.

See paternity for discussion of judicial recognition of filiation which may be necessary before custody or support may be determined.


In a custody dispute between the child's parents in Massachusetts, the court awards custody based on what it decides is "in the best interests of the child."Child Custody and Visitation - MassLegalHelp While the best interests of the child standard sounds vague and general, it is nonetheless a child-centered standard, as it requires courts to focus on the child's needs, and not the parent's needs. The law requires courts to make their custody decisions by awarding custody to the parent whom it decides can best meet the child's needs.

The law says that in making an order or judgment concerning the custody of children, "the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral, or emotional health."M.G.L. - Chapter 208, Section 31

If married parents file for divorce or custody, they automatically have temporary shared legal custody of their children, but the court can award temporary sole legal custody to one of the parents if it makes written findings that temporary shared legal custody is not in the child's best interests.

If the court is going to make a decision about whether temporary shared legal custody, it must consider "all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parents have a history of being able and willing to cooperate in matters concerning the child."M.G.L. - Chapter 208, Section 31

Also, if the court intends to award temporary or permanent shared legal custody or temporary or permanent shared physical custody, and there has been or is an abuse prevention restraining order, the court must make written findings to support such a shared custody order. The law says that in issuing any custody order courts must consider evidence of past or present abuse toward a parent or child as a factor against the best interests of the child. If the court finds or decides that there has been a pattern of abuse or a serious incident of abuse, then there is a rebuttable presumption that it is not in the best interest of the child to be placed in the sole legal or physical custody, shared legal custody, or shared physical custody with the abusive parent. This presumption means that if the court decides that a pattern or serious incident of abuse has occurred, then the court must assume that it not in the best interests of the child to be placed in the custody of the abusive parent. Rebuttable means that the abusive parent has the right to rebut (that is, challenge) the presumption.Custody and Domestic Violence - MassLegalHelp

For children born to unmarried parents, the mother of the child automatically has custody unless a Probate & Family Court orders otherwise. The Probate & Family Court can award shared legal or shared physical custody only if the parents agree or if the court finds that the parents have successfully exercised joint responsibility for the child prior to the beginning of the case and have the ability to plan and communicate with each other concerning the child's best interests.


15% of custodial parents in 2002 were men, unchanged since 1994 (cf. p.1). U.S. Census Bureau

While 40% of children whose fathers live outside the home have no contact with their father, the other 60% had contact an average of 69 days in the last year. U.S. Department of Health and Human Services

Children raised by divorced mother score lower on average than children with continuously married parents on measures of academic success, conduct, psychological adjustment, social competence, and long-term health outcomes. U.S. Department of Health and Human Services

Of the 12 million one-parent family, 10 million are maintained by women (group excludes remarriage) (cf. p.8). U.S. Census Bureau

87% of mothers and 73% of fathers reported that they hugged their children or showed them physical affection at least once a day. Similarly high percentages reported telling their children daily that they love them (cf Parenting). U.S. Department of Health and Human Services

See also

External links

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