Divorce Law: Child Custody Issues
Introduction
With divorce on the rise, child custody issues are also on the rise. Custody issues must be taken seriously at the trial court level because, while custody appeals are possible, trial court judges are allowed broad discretion to make decisions regarding the custody of children. This means, that on appeal, an appellate court will only reluctantly overturn the initial custody decision. Further, the more time that a child has lived in a certain home situation, the more hesitant the courts will be to remove that child from the seemingly stable situation. For this reason, it is important to seek an experienced family law attorney, accustomed to child custody matters, when facing child custody disputes in divorce proceedings.
Legal Standards Applied to Child Custody Issues
At the beginning of the twentieth century, children were usually awarded to their father in the unlikely event that their parents divorced. This was in recognition of the father's "right" to his children's labor and services. Children were considered property. Within the first few decades of the twentieth century, however, the pendulum began to swing the opposite direction and mothers were routinely awarded custody. This was based on the "tender years" doctrine, which professed that children of tender years should be with their mother. Although these absolute rules brought predictability and consistency to divorce proceedings involving children, they often overlooked which parent was better equipped to raise the children and, more importantly, which home situation would provide the optimal situation for the children.
Between the years of 1960 and 1980, the rights of children in custody disputes began to emerge. Courts began appointing guardians ad litem to represent a child's interest during the break up of a marriage. The guardian's job was to ensure that the child's interests were protected when the courts determined which parent should have custody of the children. During this same time period, family courts and judges began to weigh the "best interest" of the children when determining custody and visitation matters. The "best interest" standard is still used by most state courts today when making custody determinations.
Although the "best interest" standard does vary from state to state, some overriding themes are noted in the best interest analysis used by the individual states. These factors include:
Wishes of the child, if of an age deemed reasonable for expressing a preference;
Mental and physical health of the parents;
Religion and/or cultural considerations;
Need for continuation of stable home environment;
Support and opportunity for interaction with members of extended family of either parent;
Interaction and interrelationship with other members of household;
Adjustment to school and community;
Age and sex of child;
Parental use of excessive discipline or emotional abuse; and,
Evidence of parental drug, alcohol or sex abuse.
In addition to the above factors, some states' family courts allow a preference for the parent who can demonstrate that he or she was a child's primary caretaker during the course of the marriage. The "primary caretaker" factor became important as psychologists began to stress a vital link between the bond shared between a child and his or her primary caretaker. This emotional bond is said to be important to the child's successful passage through his or her developmental stages. Psychologists strongly encourage the continuation of this relationship after divorce because this bond is vital to the child's emotional and psychological stability.
When determining which parent has been the primary caretaker, courts focus on direct care-taking responsibilities, such as: (1) bathing, grooming and dressing; (2) meal planning and preparation; (3) purchasing clothes and laundry responsibilities; (4) health care arrangements; (5) fostering participation in extracurricular activities; (5) teaching of reading, writing, and math skills. Depending on the state, other factors may be considered as important when determining primary caretaker status. Even such things as exposure to second-hand smoke and volunteerism in the child's school have been considered in a primary caretaker analysis. While, in the past, the primary caretaker preference seemed just another way to award custody to mothers, as more and more men share parenting responsibilities, this preference does not necessarily favor mothers. When it is apparent that both parents have equally shared parenting responsibilities, courts once again will fall back on the "best interest" standard in determining custody.
