Child custody laws in the United States

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Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and the parent's 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 other than the United States (which has not ratified the convention), terms such as "custody" and "access" (known as "visitation" in the United States) have been superseded in many countries by the concepts of "residence" and "contact".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.

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.

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, small 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.

Case law[edit]

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 Oregon Supreme Court affirmed an Oregon statute requiring a presumption the parent acts in the child's best interests to be met prior to applying the best interests of the child standard, placing both parties on equal footing. Likewise, the court upheld the requirement set forth mandating that either a child-parent relationship or a 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 an intervenor with a legitimate purpose to come forth, and through the statute's requirement of first showing the relationship, second showing the rebuttal of the presumption, and finally judging the choice on the best interest of the child standard, the fundamental right of the parent was being given proper Due Process Requirements under the 14th Amendment Due Process Clause.

New York State[edit]

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. Unusual circumstances, such as a third party custody, can have children be supported by grandparents of a sibling.[1] Children under the age of 18 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.

Since the 1970s the divorce laws in most western nations have fathers as real parents and have made both parents are financially responsible; thus the emergence of custody battles. Before the 1970s child custody battles were almost unheard of in the United States.[2]

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

Military parents and child custody[edit]

In the 21st century, a new body of case law for custody of children in military families is developing due to more frequent deployments of both mothers and fathers in active duty, as well as dual-career military couples.[3] Military personnel are exempted from the child custody establishment requirement that the home-parent may not allow another person to have primary custody for more than 6 months before a modification case is filed.[4]

See also[edit]


  1. ^
  2. ^
  3. ^ United States (2013). Military parents and child custody: issues, considerations, and cases. Military and veteran issues. David F. Burrelli, Michael A. Miller, Rayan M. Pauwels (eds.). New York: Nova Publishers. ISBN 1628089326. 
  4. ^ "Modify Child Order". Attorney Prime. Retrieved September 2014.  Check date values in: |access-date= (help)

External links[edit]

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