Custody in General
Legal Custody in Particular
John looks anxious and rumpled as he talked to his lawyer, Alicia, in her office. “These are my children and I’m their father. I have a father’s rights. No judge is going to tell me how to raise my kids.”
“It’s true that parents have the right to raise their children as they see fit,” Alicia says in a calming voice. “The courts have said this right is one of those included in the right to pursue happiness, which is guaranteed by the Bill of Rights of the United States Constitution.”
“There you go,” remarks John. “I’m standing firm on my constitutional rights.”
“However,” adds Alicia, “the right is not unlimited.”
“The doctrine of parens patriae means father of a country or, more figuratively, the government acting as a father. Under this doctrine, the courts are allowed to decide custody and override parents’ rights in order to protect children.”
“I want joint custody of my children!” John says.
Alicia stirred a cup of Jasmine tea as she spoke. “That’s easy,” she tells him. “You already have joint custody under the common law.”
“I do?”
“Yes. And avoid saying, ‘My children.’ Judges don’t like that. Make a habit of saying, ‘Our children.’ They belong to both of you.”
Tip Keep in mind that you already have joint custody of minor children until and unless a court orders otherwise.
“OK,” John goes on. “What else do I need to know about custody?”
“Custody means the care and control of a child,” Alicia explains. “First, let me tell you about custody in general. Then, I will break it down into its two components, which are called legal custody and physical custody.”
How Is Custody Decided?
“So how does the judge decide who gets custody of our children?” John asks Alicia. “Does the mother automatically win?”
“No,” Alicia replies. She then gives John the following explanation of how custody is decided by the court.
Historically, children were viewed by the law as property. They were “owned” by their parents. Since men controlled most property, they were considered to be the primary owners of children in the case of a divorce.
The Tender Years Doctrine
When the Industrial Revolution came, husbands went to work in the factories, and wives stayed at home and took care of the children. That caused the courts to develop what became the “tender years doctrine.”
Under the tender years doctrine, mothers were awarded custody in most cases and especially for young children. The theory behind it was that mothers knew best how to take care of young children. According to the thinking of the time, mothers also had a special bond with their children. The court considered the most important factors to be the age and sex of the child. Fathers could win custody only by showing that the mother was either abusing or neglecting the children or was an unfit parent for some reason.
When women started to enter the workforce, men started to take a more active role in parenting and caregiving for the children. Congress passed the Equal Rights Amendment, which was ratified by all but fifteen states. The Fourteenth Amendment requires equal protection under the law, requiring that the law be applied equally without regard to gender. The tender years doctrine was abolished. Mothers no longer gained preference in custody decisions.
The Best Interests Doctrine
Nowadays, the tender years doctrine has been replaced by a consideration for the “best interests of the child.” This means that the judge considers several different factors to determine what custody arrangement is in the best interests of the child.
There are also presumptions that differ from state to state. In some states, there is a presumption in favor of joint custody except when there is domestic violence. This entails that joint custody is presumed by the court to be the best arrangement unless one party overrides the presumption by proving that it would not be in the child’s best interests.
“What does the best interests of the child mean?” John asks his lawyer.
“It means whatever the judge decides,” Alicia replies. “Every judge sees it differently. At best, it is an educated guess. The judge has to weigh ambiguous factors and predict the future.”
“So, custody is a guess?” asked John.
Alicia adjusts her reading glasses and says to John, “Let me read you a quote to you from a case, Montgomery County v. Sanders.”
“There is no litmus paper test that provides a quick and relatively easy answer to custody matters. Present methods for determining a child’s best interests are time consuming and involve a multitude of intangible factors that ofttimes are ambiguous. The fact finder is called upon to evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future. At the bottom line, what is in the child’s best interests equals the fact finder’s best guess.”
Note Custody is the judge’s best guess as to what will be in the best interests of the child.
Custody Factors
To help the judge decide what is in the best interests of the child, each state has developed, through legislation or cases, certain factors to take into account. While the factors are different in each jurisdiction, they can be summarized as follows:
- Fitness of the parents: There is a presumption that parents are the best caretakers for the children. So parents almost always win in custody disputes with grandparents, stepparents, adult siblings, and other third parties. The court can consider the character and reputation of the parents and any agreements between them.
- Preference of the child: A judge will consider which parent the child wants to live with, but this is not binding on the court. The judge will take into account the age and maturity of the child. Children are usually interviewed privately by the judge in chambers or by an attorney appointed to represent them or by a custody evaluator.
- Routine: The court considers routine, continuity, and stability to be good for children. So, if the children are doing well, there is a certain judicial inertia at work. A judge doesn’t want to change things, because a change may make things worse.
- Other factors: A judge will also consider other factors, including each parent’s health, age, income, resources, residence, religion, and conduct. The judge can order psychological tests of one or both parents. She can also consider school performance, where siblings live, or any other factor she thinks is important.
What Are My Chances of Getting Custody?
“Consider this,” Alicia tells John, “before you submit the future of your child to a judge. Judges are not trained for this. Judges are usually not psychiatrists, psychologists, therapists, social workers, or any other kind of mental health professional. Judges are lawyers. And the legal system is based on logic and the adversarial system. It works fine for contracts and torts. But using it to make family decisions is forcing a round peg into a square hole.”
“Based on all that, what are my chances of getting joint custody?” asks John.
“I can’t tell you that,” replies Alicia. “Custody is decided on a case-by-case basis. The judge has to consider all the unique facts and circumstances of each case.”
“My wife and I argue all the time,” explains John. “We can’t agree that today is Tuesday.”
“That doesn’t worry me,” Alicia says. “The courts realize that parents are not always on the best of terms when they come to court for a divorce. So a judge will not necessarily deny joint custody just because the parties are arguing at the moment. They will look at past history to see if the couple has been successful in raising the child together so far. If so, the courts tend to favor joint legal custody.”
Employing a Custody Notebook
“Even if we get joint custody, how do we communicate with each other? Whenever I talk to her, it always breaks down into a shouting match,” John said.
“Here’s an idea I got from the courts in Missouri where I went to law school,” Alicia tells him. “Take a three-ring binder and make a custody notebook. The parents will pass the custody notebook back and forth as they alternate caretaking in joint custody. You communicate with each other about parenting decisions, schedules, homework, and so forth by inserting messages into the notebook.”
Alicia pauses and then continues: “Place a copy of all the children’s medical records and bills in the notebook. Also put in copies of reimbursement requests for uncovered medical expenses or extracurricular activities and the reimbursement checks.”
“I think we could do that,” says John.
Tip Use a legal custody notebook if you and your ex have trouble communicating.
Future Custody
“Can I ask the court to give the mother custody until completion of the fifth grade, then switch custody back to me?” asks John.
“The short answer is, No,” says Alicia. “The court has to determine the best interests of the child based on the facts and circumstances that exist at the time of the change in custody. It is hard enough to determine custody at the time of the custody trial. But to try to divine what the facts will be years in the future is not something a judge would try to do.”
What Is Legal Custody?
Until now, I’ve been talking about custody in general terms. But there is a further distinction that can be made: There is physical custody, which is what most people mean when using the word custody. Then there is legal custody. This involves long-term parenting decisions, such as education, medical treatment, discipline, housing, and religious decisions. Other legal custody decisions include the right to permit a child to marry, join the armed services, or hire an attorney to represent a child.
Now, let’s further break down legal custody into two separate categories: You can have joint legal custody or sole legal custody.
Joint Legal Custody
Every parent starts out with joint legal custody. The court can change that, but until there is a court order, you have joint legal custody of your children. Joint legal custody means that two parents make decisions about their children together. One parent cannot make final decisions alone. If the parents can agree and share the responsibilities of raising children, then joint legal custody is the best solution.
When parents can raise children in harmony, even though they are divorced or separated, the children ultimately benefit. They benefit because parents have different personalities and skills that they combine when raising the children. Each parent can participate in decisions, and neither is burdened with full responsibility for the children’s care. When parents share decision making, they can both actively participate in their children’s future.
Sole Legal Custody
When one parent is given the right to make all the long-term parenting decisions, that person is said to have sole legal custody. He is called the legal custodian of the children. That parent can decide where the children will live, where they will go to school, what physicians they will see, and what religion they will be brought up as.
The legal custodian can decide on public or private school. He can also decide on orthodonture, medication, mental health professionals, and cosmetic surgery. He has the right to give consent for their minor children to enter the military or get married. He can select a lawyer to represent the child in the event of a car accident or other legal matter.
This can have a practical effect on child support. The noncustodial parent has the obligation to contribute to uncovered medical expenses like orthodonture, therapy, or cosmetic surgery even if she doesn’t agree they are necessary. The same goes for private-school tuition.
Summary
You have your emotions under control, you have decided to get divorced, you have selected a good divorce attorney. Now, it is important to think long and hard about whether you want to become involved in a bitter child-custody battle. Your legal fees will easily double. Your stress level will soar. You will spend your time in court. The judge will make a guess about the future of your child. If you can instead agree on joint legal custody, even though you and your ex will be living apart, you will both be able to participate in the business of raising your children. In the next two chapters, we will focus on physical custody and access, which concerns where the children will live and the amount of time they will spend with each parent.