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Child Custody

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"Tender Years" Doctrine:
Under this doctrine courts generally award custody of children of tender years (usually ends at the teenage years) to the mother unless she is found to be unfit. In many states this doctrine has been abolished by statute, e.g., N.Y. Dom. Rel. Law § 240, or by judicial decisions. See, e.g., Arnold v. Arnold, 95 Nev. 951 (1979).

Joint custody
Involves both parents sharing responsibility and authority with respect to the children; it may involve joint "legal" custody and/or joint "physical" custody.

Joint legal custody:
Both parents share in the decision-making affecting the child's life, such as in the areas of education, medical problems and recreation.

Joint physical custody:
Where a child lives with both parents, but at various times. The time split is not necessarily 50-50. Rather, the courts take into account the child's age, a parent's availability and desires and other factors.

Neglected child:
A child is "neglected" when his parent or legal custodian, by reason of cruelty, mental incapacity, immorality or depravity, is unfit to properly care for him, or neglects to provide for the child's basic needs.

Uniform Child Custody Jurisdiction Act (UCCJA): (1968) A uniform law adopted by all states, which deals with multi-state child custody and visitation disputes. It generally recognizes jurisdiction in a child's "home state." 

Parental Kidnapping Prevention Act (PKPA): (federal statute enacted in 1980) The PKPA is a federal statutory scheme designed to make up for deficiencies in the UCCJA, and designed to be applied and interpreted by state courts.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): (1997) UCCJEA is a uniform law that was enacted to revised the law on child custody jurisdiction taking into account the federal enactments of PKPA and almost 30 years of inconsistent case law.

Standards for Awarding Custody

As discussed before, courts determine child custody based on the best interests of the child. State statutes establish certain criteria that courts use to evaluate what would be in the best interests of the child. As an example, these factors can include:

  • The age of the child;
  • The physical, emotional, educational, religious and mental health needs of the child;
  • The parent's fitness to care for the child, including the parent's emotional stability;
  • The financial situation of the parents;
  • The child’s adjustment to home, school and community;
  • Which parent is more likely to allow frequent, meaningful and continuing contact with the other parent;
  • Whether either parent has mislead the court to gain increased parenting time, falsely reported abuse or been the perpetrator of domestic violence or child abuse or neglect;
  • Whether one parent is the primary caretaker; and
  • The input of the child (after a certain age).

Historically, if the child was under a certain age (e.g., the "tender years”), courts often presumed the child should live with the mother, provided there was no evidence that she was unfit. Today, after numerous court challenges to this presumption, courts disregard the parent's gender in making these decisions.

EXAMPLE: Stacey and Kelsey are in the middle of a divorce proceeding and each seeks custody of their two children, who are ages 4 and 2 (the "tender years"). In an independent evaluation of Stacey and Kelsey, each is considered fit and a proper person to raise their children. Despite their equal footing as fit parents, the court awards custody to Stacey because of the presumption that the mother should be awarded custody of children in the "tender years." Kelsey appeals on the grounds that this presumption is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The appeals court held for Kelsey, stating that a gender-based presumption is unconstitutional. See, e.g., Ex parte Devine, 398 So.2d 686 (Ala. 1981).

The parent's sexual activity could also have an impact on the court's decision in who should receive custody of the children. Historically, courts made a distinction between heterosexual and homosexual sexual activity. Specifically, the former was rarely considered, unless it had a negative impact on the child. The latter, however, once was virtually an automatic ground for denying custody or even visitation.

EXAMPLE: After Michael and Amy were divorced, Amy (who has custody of their minor child) began dating Homer, who Amy knows is married. Michael argues that this adulterous conduct makes Amy unfit to retain custody. The court held for Amy, reasoning that this type of behavior was not a per se bar to her retaining custody of their child. Rather, unless there was evidence that a parent's sexual activities involve or affect the child; these activities may not constitutionally be considered by the court. Here, there was no such evidence. As such, Amy should retain custody of the child. See, e.g., Feldman v. Feldman, 358 N.Y.S.2d 507 (App. Div. 1974).

Now, many courts are more progressive on the subject. Specifically, courts use a parent’s identity as gay, lesbian, bisexual, or transgendered as a factor in the best interest of the child determination and will look to see if the homosexual relationship adversely affects the child before vetoing custody in this type of household.

EXAMPLE: Boyd and Kendall are divorced. Kendall receives custody of their four children, including Nelson, a son, now age 12. Kendall has been in rehab several times for a cocaine addiction. As such, Kendall has been unable to keep Nelson in the professional counseling that he badly needs. Boyd, who is a homosexual and has lived for five years with a male partner, seeks custody of Nelson to give him the attention he needs. Kendall objects to this change, given Boyd's sexual orientation. Despite Kendall's reservations, the court held for Boyd because there was no evidence that Boyd's homosexual relationship caused any harm to Nelson. See, e.g., M.A.B. v. R.B., 510 N.Y.S.2d 960 (Sup.Ct. 1986).

Race is another factor courts may not use in deciding custody issues.

EXAMPLE: Harvey and Tanya are both white. When they divorced, Tanya was awarded custody of their daughter Rachel. Subsequently, Tanya marries a black man (Dennis), prompting Harvey to petition for custody of Rachel due to changed circumstances. The court held that a racially-mixed household by itself was an insufficient reason to change the custody arrangement in this case. To allow otherwise would deny equal protection, as guaranteed under the Fourteenth Amendment. See, e.g., Palmore v. Sidoti, 466 U.S. 429 (1984).

When a court has to consider religious practices of the parties, the court must take into consideration what impact its decision would have on one's constitutional right to the freedom of religion. If a religious practice poses an immediate and substantial threat to the child's well-being, the court may issue an order to protect the child, provided it is not too intrusive. See, e.g., Osier v. Osier, 410 A.2d 1027 (Maine 1980).

EXAMPLE: Jerrod and Suzanne are divorced. Suzanne was awarded custody of their three children. Subsequently, Suzanne married Kenneth, a devout Jehovah's Witness, who convinced her to convert to his religion. Jerrod petitioned the court for custody of their children because he objected to the religious influence on his children, particularly Jehovah's Witnesses' non-belief in blood transfusions. The court is required to respect one's religious beliefs; this practice is not sufficient to warrant removing the children from Suzanne's custody. Accordingly, it would have to find some alternative remedy to deal with the blood transfusion issue, if one were ever necessary.

Lastly, a handicap which only affects a parent's ability to participate with children in physical activities is not sufficient to deny custody. See, e.g., In re Marriage of Carney, 24 Cal. 3d 725 (1979).

Modifying Custody Agreements

When modifying a custody agreement, courts follow a more stringent standard than used in initially establishing custody. Specifically, for an initial custody determination, the court presumptively assumes each parent is fit. Later, before a court will change custody arrangements, the other parent must show there has been a substantial change in circumstances before the decree will be modified. Moreover, the court requires additional persuasive arguments because it is foremost concerned with the child's stability.

EXAMPLE: Jennifer and Andrew were divorced three years ago. Andrew was awarded custody of their two sons. Recently, Jennifer married Oliver and wants custody of the boys now. Andrew is still single. When looking at the stability of the child's living situation, the other parent must show a "change in circumstances" so greatly altered that there is a strong possibility" of harm to the child. Here, the boys are not in any danger; therefore, the court would likely deny Jennifer's request for a change in the custody arrangement. See, e.g., Perreault v. Cook, 322 A.2d 610 (N.H. 1974)

Despite this general rule that there must be a substantial change in the circumstances to justify a custody modification; the courts actually make a case-by-case determination, taking into account all the facts at hand.

EXAMPLE: Zackary is 10-years-old when his parents, Helen and Gilbert, divorce. Physical custody is awarded to Helen, except on alternate weekends. When Zackary turns 13, Gilbert seeks custody to give him a male influence. Zackary also wants to live with his father. The court will consider Zackary's wishes and his entry into his teenage years, which may justify changing custody to Gilbert. See, e.g., King v. King, 333 A.2d 135 (R.I. 1975).

To alleviate the problem of having to decide which parent is more deserving of custody of the children, courts have evolved into providing for joint custody of children. Today, most states have a presumption favoring joint custody of children. If both parents are deemed fit to perform their parental duties it is considered to be in the best interest of the child for parents to share in custody. Joint custody arrangements can include joint legal custody, joint physical custody, or both.

Joint Custody

Trial judges have wide the discretion to award joint custody. There are two types of joint custody:

  1. Joint legal custody
  2. Joint physical custody

Joint legal custody allows each parent to have an equal say in matters regarding child-rearing, such as school choice and religion. Both parents retain equal rights in major life decisions of the child, regardless of where the child is living.

Joint physical custody permits each parent to spend a significant amount of time during the week with the child and share in the actual day-to-day living arrangements. Joint physical custody does not mean a 50/50 split in parenting time. Often, the child will live with one parent during the week to attend school in that area and then live with the other parent on the weekends. If the parents live in close proximity, the weekend visits could be supplemented with weeknight overnight visits. Joint legal custody is often the preferred method due to the enormous amount of coordination required for joint physical custody.

EXAMPLE: Elizabeth and Darren were divorced two years ago. The court awarded them joint legal custody of their two children; however, Elizabeth was awarded physical custody and Darren was awarded liberal visitation. For example, since they both are entitled to take an active role in the decision-making, they both decided which private schools the kids should attend. In addition, they had to compromise on the children's religious upbringing because Elizabeth is Jewish and Darren is Catholic.

Sometimes custody disputes extend beyond just the two parents to a non-parent. In those instances, the "best interests of the child" standard does not apply. Rather, nearly all courts recognize that the parent has some sort of inherent "right" to custody of the child. Yet, a parent may be deprived of custody of the child if the parent is shown to be unfit to perform her parental duties. Unfitness usually takes the form of the parent being neglectful or abusive. See, e.g., In re Marriage of Hruby and Hruby, 304 Ore. 500 (1987).

EXAMPLE: Bennett, the natural mother of an eight-year-old child, brought an action against Jeffreys, the non-parent custodian of the child with whom the child had lived since just after birth, to regain custody. When the child was born, Bennett was only 15 years old and she was induced by her parents into giving custody to Jeffreys. There was no finding of neglect or abandonment on Bennett's part and the trial court specifically found that Bennett was a fit parent. Nevertheless, the trial court held that the child should remain with Jeffreys. The appellate court reversed and awarded custody to Bennett. Jeffreys appealed. The Court of Appeals held that prolonged separation of mother from the child, combined with the mother's lack of an established household of her own, her unwed state, and attachment of the child to her custodian constituted an "extraordinary circumstance" which required examination by the court into the best interests of child. Yet, given the lower court's failure to examine the qualifications and background of the custodian vis-à-vis the mother to determine the best interests of the child, the case would be remanded for new hearing. See, e.g., Bennett v. Jeffreys, 356 N.E.2d 277 (1976).

Although the general rule is that the natural parent has the right to rear her child, the state may intervene and deprive a parent of this right where extraordinary circumstances exist (i.e., abandonment, neglect, surrender, unfitness, extended interruption in custody). Thus, parental custodial rights are not absolute.

Jurisdiction over Custody Disputes

As in divorce proceedings, the state of one of the parties' domicile is the proper court to hear the divorce action. In a custody dispute, if both parents live in the same state, there is no problem with jurisdiction. Conversely, if a parent moves (with or without the children) after the initial custody decree is issued, the jurisdictional issue gets blurred. Specifically, there could be a problem sorting out which court should have jurisdiction to modify the agreement.

Courts have two statutes that they can turn to for jurisdictional guidance:

  1. Uniform Child Custody Jurisdiction Act (UCCJA).
  2. Parental Kidnapping Prevention Act (PKPA).

The UCCJA has been adopted by all states and the District of Columbia. It sets ground rules in each state for determining whether a state has jurisdiction to issue a decree, if custody proceedings are not pending in another state simultaneously and no other state has already issued a custody decree. When dealing with the first state to hear the case, the PKPA is inapplicable because there is no potential conflict. Accordingly, the matter will be decided solely on the local state law in that jurisdiction.

So, in the initial custody proceedings the forum state will only be deemed to have jurisdiction if at least one of the four following conditions is satisfied (the first two carry the most weight):

  • "Home state": First, the forum state qualifies if it was the "home state" of the child at either of two dates (1) the date the proceeding commenced or (2) any date within six months before the proceedings were commenced—but only if the child is now absent from the forum state "because of removal or retention by a person claiming his custody or for other reasons." See UCCJA § 3(a)(1). (A six-month period was selected to provide a bright-line test, coupled with the fact that it takes about six months to become integrated into a community.)
  • "Best interests" : Second, the forum court can have jurisdiction if "it is in the best interest of the child" that a court in the forum state assumes jurisdiction because: (1) the child and his parents, or the child and at least one other party, have a significant connection with the forum state; and (2) there is available in the forum state "substantial evidence concerning the child's past or future care, protection, training and personal relationships." See UCCJA § 3(a)(2).
  • Abandonment or emergency: Alternatively, the forum state will have jurisdiction if the child is physically present there, and has either been abandoned or there is an emergency requiring protection of the child against mistreatment, abuse or neglect. See UCCJA § 3(a)(3).
  • No other state: Lastly, the forum state will have jurisdiction if no other state has jurisdiction (or is willing to exercise jurisdiction), and it is in the child's best interest that the forum state hear the matter. See UCCJA § 3(a)(4).

EXAMPLE: Hilda and Lars initiated custody proceedings in their home state of Oklahoma. Lars was not happy with the way the case was proceeding, so he took their two children to Florida, without court approval. The Florida court would not be the proper forum to hear the case because physical presence of the child by itself is not enough to confer jurisdiction on a state. The purpose of this rule is to avoid giving a parent an incentive to "snatch" a child and bring the child to a state where the snatching parent thinks the court will be more sympathetic to him and award custody to him over the other parent.

On the other hand, physical presence of the child in the forum state is not required for a court to be able to exercise jurisdiction over the case. In addition, the UCCJA does not explicitly require that the forum state obtain personal jurisdiction over an absent parent either, in order for the court to have jurisdiction over the custody dispute. Yet, the parent needs minimum contacts with the forum state before a child support order can be enforced. In any event, the UCCJA does deal somewhat with due process concerns by requiring that the absent parent be given notice and an opportunity to be heard. See UCCJA § 5.

The PKPA is a federal statute that regulates how states will carry out their federal constitutional duty to afford full faith and credit to the custody determinations of other states. It regulates this more or less in accordance with the UCCJA, saying that a custody determination which conforms to a set of express statutory criteria must be afforded full faith and credit.

Furthermore, it deals with those situations where a state is asked to either:

  • issue a custody decree at a time when another state already has custody proceedings pending; or
  • modify a custody decree previously issued by another state.

Since federal law takes precedence in a conflict between state and federal law, the PKPA determines the ultimate outcome in these situations.

Either of these two scenarios requires a multi-step process. Specifically, the second court ("State B") looks at whether the first state ("State A") had jurisdiction at the time of commencement of the original proceeding. The court answers this question by looking at State A's version of the UCCJA (there could be slight variations in the language from state-to-state).

If State B decides State A had proper jurisdiction over the matter, its actions depend on whether it is being asked to issue an initial decree while proceedings are still pending (but have not yielded a decree) in State A, or is instead being asked to modify a decree previously issued by State A. If the proceedings in State A are continuing, and have not yet yielded a custody decree, then State B must not exercise jurisdiction. See 28 U.S.C. § 1738A(g).

The PKPA imposes a rule that "the first valid proceeding commenced is permitted to continue to its ends." In this case, State A issued the first valid decree.

EXAMPLE: Hugh and Esther live in California with their son, Lester. Hugh files for divorce in California and seeks custody. These proceedings are pending and have not yet yielded any sort of custody decree. Esther takes Lester and moves to Arizona. Since the Arizona court must conclude that California has jurisdiction (under all forms of the UCCJA California was the "home state" of Lester at the time the proceedings there were commenced), Arizona must decline to exercise jurisdiction over the custody issue as long as California is continuing to hear the case.

If State B concludes that State A did not have proper jurisdiction, then State B has jurisdiction and may issue its own decree. If State A's proceedings are pending but have not yielded a decree, then the State B decree will of course be the first decree. If State B does not have jurisdiction, it must decline to hear the case. As such, neither state's decree would be enforceable.

The last scenario involves State B's jurisdiction either superseding or running concurrently with jurisdiction in State A. State B's role in this case depends on whether State A has continuing jurisdiction or if State A's jurisdiction no longer continues. In this "both states have   jurisdiction" situation, the PKPA requires that State B not modify State A's decree. Rather, State B must enforce State A's decree. See 28 U.S.C. § 1738A(a). If State A's jurisdiction no longer continues, State B may modify State A's decree. See 28 U.S.C. § 1738A(f)(2).

EXAMPLE: Tucker and Danielle reside with their two daughters in Nevada ("State A" ). In 1983, the Nevada courts issued a divorce decree, and awarded custody to Danielle. Tucker moves to his parents' home in Pennsylvania ("State B") in 1985. In June 1986, the children come to Pennsylvania for an extended visit with Tucker (Danielle agreed to the visit). In March 1987, Tucker refuses to return the children as agreed and instead starts a Pennsylvania proceeding for custody. Both Nevada and Pennsylvania have enacted the unmodified form of the UCCJA. Danielle continues to live in Nevada. The Pennsylvania court should refuse to grant Tucker custody because of Nevada's initial jurisdiction (most likely continuing jurisdiction) as the children's "home state" at the commencement of the proceeding. Accordingly, Pennsylvania should enforce the Nevada decree. See, e.g., Barndt v. Barndt, 580 A.2d 320 (Pa. Super. Ct. 1990).

The interaction between UCCJA and PKPA has led to some inconsistencies in enforcement, which prompted the Uniform Law Commissioners in 1997 to address these problems in a new act; the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA accomplishes two major purposes.

  • It revises the law on child custody jurisdiction, taking into account federal enactments and almost 30 years of inconsistent case law. Article 2 of this new Act provides clearer standards for which States can exercise original jurisdiction over a child custody determination.
  • It harmonizes the law on simultaneous proceedings, clean hands and forum non conveniens.

As these scenarios indicate, the parent who acts first in a custody dispute has potential leverage over any subsequent proceedings.

Naturally, some parents are dissatisfied with the outcome of a custody dispute and may decide to use the "self-help" remedy of kidnapping the child. To deter this type of conduct, it may be possible to use the Federal Extradition Act, 18 U.S.C. § 3182, to force officials of the new state to send the parent back to the first state to face criminal charges. See, e.g., California v. Superior Court of California, 482 U.S. 400 (1987).

Sometimes these parents take the child to another country. In 1985, the U.S. Senate ratified the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is accompanied by U.S. implementing legislation; International Child Abduction Remedies Act, 42 U.S.C. § 11601. The Convention facilitates the return of abducted children and the exercise of visitation rights across international boundaries. As of 2017, the treaty was in effect between the United States and 82 other countries. In addition to civil sanctions under the Hague Convention, the International Parental Kidnapping Crime Act adds criminal penalties as well. See 18 U.S.C. § 1204.

Unfortunately, in a custody dispute, one parent is likely to be the loser. Although one parent might not have been awarded favorable custody, the parent would likely be eligible for some type of visitation.

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