The law regarding child custody in the United States differs from one State to the other. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the State where the child has presided continuously for at least 6 months prior to the custody case has jurisdiction. The Act however provides for instances where a child has not been continuously resident in any State for 6 months prior to proceedings. Upon determination of jurisdiction and subsequently, the custody and visitation rights, a different State may not overturn the decision of the court of first instance. The only exception under which modifications can be made to the decision or the case re-decided, would be where the Court previously vested with jurisdiction decides that it was erroneously vested in the first place.
The fact that Child Custody laws differ from State to State does not detract from the high tension, and agonizing emotions which are very often palpable in Family Courts. Custody cases can get very nasty and even downright ugly where each party is bent on ‘getting one’ over the other. At the end of the day however, what parents must endeavour to understand, is the fact that the child or children are the ones being almost irreparably hurt; both emotionally and psychologically. Parents are thus admonished not to use their children as pawns in their bitter divorce and custody cases. Where it would benefit the children for both parents to share custody, clients should be encouraged and persuaded to remain motivated and amicable based on the benefits involved for the children.
State by State
Some States still presume that parents should have joint custody of the children upon their marriage dissolution. Where such joint custody may potentially and genuinely harm the child, the facts must be brought before the court and this presumption becomes insignificant. Similarly, although some States operate under the notion that custody is automatically vested in the mother where the parents are unmarried, other States operate differently and expect the mother; especially single mothers, or the father, depending on who wants custody to file for it.
In the State of New York, for instance, the Court is most inclined towards joint custody if it serves the best interests of the child. Where a child is believed to be directly or indirectly exposed or potentially exposed to harm; such as domestic violence, under this arrangement however, discretionary powers to grant sole custody to one of the parents will almost likely be invoked. Even in the absence of custodial right, it is very unlikely, except for where there are exceptional circumstances, that a New York Court will deny the other parent visitation rights. In both custody and visitation cases, diverse factors such as the child’s relationship with both parents, other siblings, the living conditions of either and both parents, their individual and collective sources of income, work schedule amongst several others, are taken into due cognisance. Where a child has attained a certain level of maturity, usually 12 years or older, the Court may add weight to his or her wishes as to which parent he/she would rather live with and why. A similar system known as ‘Time Sharing’ is operated by the Family Courts in Florida based on the same principle: the best interests of the child.
In general, regardless of the cosmetic or substantive differences in implementation, every State’s Family Court decides child custody cases based on the child’s best interests and various factors including history of domestic violence, drug use, relationship with the parents, relationship between the parents; are they married or are they cohabiting or no longer involved, work schedule and education, are taken into very serious consideration.
Types of Custody
Child custody is a term which refers to the child’s place of abode. It simply means the place where the child resides. If custody rights are given to the father for instance, this simply means that the child/children will live with the father and the mother may be entitled to visitation rights, depending on the specific circumstances of each family. Where the children, following divorce or in the case of unmarried parents, following a breakdown in their relationship, resides with one parent all the time, that parent has sole custody and the other parent may have visitation and contact rights.
Many couples are able to come to amicable arrangements where the children spend every weekend with one parent and the whole week with another. In some other cases, it may be that the children stay with the mother for 2 weeks and move to the father’s house for the subsequent 2 weeks; alternating residence. This is known as joint custody. Arrangements are made mostly based on the parents’ circumstances; who works when, where the children school and how close it is to either parent’s house.
There is also split custody where there are 2 or more children in the family and the parents split them such that ‘A’ lives with the father while ‘B’ moves in with the mother. Sole and legal custody reside with each parent over the child in their custody while the other parent has visiting and contact rights. The agony of ‘choosing’ or being seen to be choosing one kid over the other by parents can be very damaging for kids and this often makes split custody the least favourite option. Critics and researchers have evidenced that split custody and moving children back and forth from one parent’s house to the other in the case of joint custody, may sometimes have very negative impacts on the children’s emotional development.
Essentially, the mechanics of child custody arrangements are the same in every State with sometimes different terminologies and implementation techniques. Fundamentally however, the Courts will always rule based on the most beneficial option for the children and not the parents’ wishes. Of the three basic and formal types of custody, Family Courts are more partial to joint custody based on the need for children to grow up with the love, care and protection of both parents. Where this could be potentially harmful for the children however, the Court’s discretion will be employed in finding an alternative custodial arrangement.