Child Custody

What is child custody?

Child custody is a legal term which is used to describe the practical and legal relationship between the parents and their cildh, such as the right of the parent to make decisions for the child. This also includes the parent’s duty to care for the child. The concepts of “custody” and “access” have been superseded by terms such as “residence” and “contact” (or “visitation” in the United States) after the ratification of the United Nations Convention regarding the Rights of the Child in most countries. This means that instead of a parent having “custody of” or “access” to a child, the child is now said to “reside” or have “contact” with a parent.
One of the most difficult aspects of getting divorced is dealing with child custody and visitation if one parent wants sole legal custody of the child. Legal custody of the child means having the right and the obligation to make decisions about the child’s upbringing. For example, a parent with legal custody can make decisions about religion, schooling, or medical care. Parental divorce means a restructuring of parental rights and responsibilities in relation to children. If the parents can agree to a restructuring arrangement (which they do in the overwhelming proportion of 90% of divorce custody cases) there is no dispute for the court to decide. If the parents are unable to reach such an agreement (approximately 10% of the cases), the court must help to determine the relative allocation of decision making authority and physical contact each parent will have with the child. In order to determine the restructuring of rights and responsibilities, the courts typically apply a “best interest of the child” standard. The court only intervenes when disputes arise between the two parents.


The most acrimonious disputes are generated by family law proceedings which involve issues of residence and contact. Cooperating when it comes to sharing your child is the best way to resolve the dispute, and many parents cooperate, but not all. For those parents that engage in litigation, there seem to be few limits. The court filings quickly fill with mutual accusations by one parent against the other. These accusations include physical, sexual, and emotional abuse. Some of the other used accusations are brain-washing, parental alienation syndrome, sabotage, and manipulation. Because these infrequent super-heated custody battles make the news, sometimes the public’s perceptions as to the adequacy of the court’s response and the prevalence of such disputes are distorted.
Which parent gains the edge in a custody dispute? Most often, the parent that gains the edge is the parent who can show that a decision in their favor is in the interest of the child. However, the definition of “best interest” can be ambiguous, and is often based on arbitrary factors. Nowadays attorneys and their clients are seeking sound and quantifiable data which will define areas that will help the courts determine the best interest of the child. The most important area is the home. The second most important area is school quality. By ensuring both of these two areas a parent can win the child custody rights. Decisions regarding child custody and other parenting arrangements occur within several different legal contexts. These decisions include parental divorce, guardianship, neglect or abuse proceedings, and termination of parental rights. Because of these possible decisions, the parents should agree on a restructuring arrangement, without any court intervention and without any stress for the child involved in the dispute.

The laws

Forum shopping to gain advantage occurs both between nations and where laws and practices differ between areas within a nation. One of the conventions that seek to avoid this is the Hague Convention. In the United States of America, a new act, the Uniform Child Custody Jurisdiction and Enforcement Act, was adopted by all 50 states. According to this act, family law courts were forced to defer jurisdiction to the home state.
Nowadays, courts and legal professionals are beginning to use the term parenting schedule instead of custody and visitation because this new terminology eliminates the distinction between custodial and noncustodial parents. It also attempts to meet the developmental needs of the children by crafting schedules that are build on the so-called best interests of the children. As an example, younger children need shorter, more frequent time with parents, whereas older children and teenagers may demand less frequent shifts, but longer blocks of time with each parent.