Child Custody

When parents divorce or legally separate, the parents’ rights to their children become formalized in a court decision called custody. Custody refers to both the rights of parents to spend time with their child and to make decisions about the child’s life.

Most American families today bear little resemblance to the traditional nuclear family of the nineteenth or early twentieth century. Whereas the American family once was characterized by two married opposite-sex parents living with their children, children today may live with two unmarried parents, one parent married to a stepparent, a single parent, two parents of the same sex, a grandparent, or a nonfamily member. In 2023, the Pew Research Center reported that the percentage of Americans aged twenty-five to forty-nine living with a spouse and at least one child under the age of eighteen had fallen from 67 percent in 1970, to just 37 percent in 2021. As American families have grown more diverse and living arrangements have become more likely to consist of children living with a single parent or parents who are unmarried, child custody has become an issue of greater importance.

Brief History

Historically, child custody laws in the United States favored fathers, as children were considered property and women typically had fewer property rights than men in most states. During the late nineteenth century, the United States underwent many social transformations that changed the rights of men, women, and children, as well as their roles in the family and in society. The concept of childhood took root, and the Industrial Revolution brought men out of their homes to work.

In 1920, women gained the right to vote. As the status of women and children grew, so too grew the status of mothers and protection of children. States began adopting laws based on the "tender years" doctrine. This doctrine favored mothers and was based on the principle that a mother was more suited to nurture and parent a young child. The doctrine shaped state child custody laws until the mid-twentieth century. Family courts based custody decisions on the assumption that it was in the child’s best interest to be in the custody of the mother, and mothers typically were awarded custody as long as they were deemed fit.

As divorce became more common, attitudes shifted. By the 1980s, more men petitioned the courts for custody. Courts responded by awarding joint custody, or shared physical and legal responsibility, for children. Over time, social trends and laws evolved to not only grant men joint custody but to grant them sole custody. Many states rejected the tender years doctrine on the grounds that it was unconstitutional to grant custody based on a parent’s gender.

In the twenty-first century, joint physical custody, in which a child lives with each parent for a portion of time, has become increasingly common in the US and abroad in places like Europe. A 2022 study, for example, found that the share of divorces resulting in join custody rose from 13 percent in the early 1980s to 34 percent in the early 2010s. In the US, most states have child custody laws that are based on the concept of equal protection: that both parents have an equal right to request custody and custody should not be determined by a parent’s gender. In Georgia, Illinois, and West Virginia, children over the age of fourteen have the right to choose the parent whom they want to have primary custody, though a judge may overrule this decision if they deem it is not in the child's best interest. In several states, laws reflect not only that both parents have the right to request custody, but that both parents are encouraged to share parenting. For example, in 2013, a law went into effect in Arizona requiring courts to grant custody that maximized the amount of time both parents could spend with the child. Other states, such as Florida, Texas, and Pennsylvania, have similar laws that mandate a minimum percentage of parenting time, such as 40 percent, for each parent.

In some states, laws also changed the terminology related to custody to reflect new trends. In Arizona, for instance, the term "physical custody," which refers to time spent with a child, is now called "parenting time." "Legal custody," which refers to the right to make decisions, is now called "legal decision-making authority."

Overview

When parents divorce, a judge awards custody of the children to one or both parents. In many cases, the parents have come to an agreement about child custody before the divorce is finalized, and the judge awards custody based on their agreement. When parents cannot come to an agreement, the judge determines custody. A judge awards custody based on a combination of factors that focus on the best interests of the child. These include the interaction of the parents and other family members with the child, the home environment, the child’s adjustment to the community and school, and any evidence of child abuse, sexual abuse, and parental drug or alcohol abuse. The judge also may consider the wishes of the parents and/or the child.

In most states, the judge awards both physical and legal custody. Both of these types of custody can be awarded solely (with one parent) or jointly (with both parents). Custody is governed by state laws, and the terms used to define custody vary among states. For example, a state may use the term "custody" to refer to what another state calls "legal custody" and use the term "residential custody" to refer to what another state calls "physical custody."

Legal Custody

Legal custody is the right of a parent to make major decisions about a child’s life. Major decisions are those involving education, religious upbringing, and health care. A parent may have sole legal custody or joint legal custody. Sole legal custody is when one parent has the right to make all major decisions about the child’s life. Joint legal custody is when both parents share the right to make all major decisions about the child’s life.

In some states, such as Illinois, the term "sole custody" is used to encompass both legal custody and physical custody. In these states, a parent with sole custody makes all major decisions about the child’s life and the child lives with that person, who is called the "custodial parent." Custody can also refer to only the right to make decisions and not how much time a child lives with one or both parents. In these states, the noncustodial parent has a right to visitation. Visitation can be substantial and can entail a child living equal amounts of time with both parents or living with one parent for only a moderate amount of time. In these states, the term "joint custody" is used to describe only shared decision-making and not the time the child spends with each parent.

Physical Custody

Physical custody, sometimes called "residential custody," is the right to have a child live with a parent. Physical custody may be sole physical custody or joint physical custody. In some states, the terms "sole custody" and "primary physical custody" are used to describe the parent with whom the child lives most of the time. In these states, the noncustodial parent has visitation rights.

In other states, the term "joint custody" is used to encompass both legal and physical custody. In these states, joint custody refers to both parents sharing in decision-making for the child and the child living or spending a significant amount of time with both parents.

In states with joint physical custody, the time a child spends with each parent may vary significantly. It can range from a few days a year to an equal number of days a year between both parents. For example, a child may live one week with one parent, then live with the other parent for the same number of days. Or a child may live primarily with one parent and spend every other weekend with the other parent. When a child lives approximately the same number of days with each parent, it may be called "equal time-sharing." In some states, the term "joint custody" refers to physical custody that is based on an equal time-sharing arrangement.

The term "shared custody" is sometimes used interchangeably with joint custody. Its meaning depends on how the relevant state defines the term "custody"—as legal custody, physical custody, or both—as well as other criteria per its guidelines and regulations. For example, one state may define shared custody as physical custody in which a child lives an equal amount of time with both parents; another state may define it as physical custody in which a child lives with each parent more than 30 percent of the time and each parent has a shared responsibility for the child.

An additional type of joint physical custody is when the child lives in the family home and parents alternate living in the home. This type of custody is called "bird’s nest custody."

Split custody is when one parent has custody of one or more children and the other parent has custody of the other children. This type of custody arrangement is not common as most judges prefer to keep siblings together, but it can be used when individual circumstances warrant it.

Visitation

Visitation refers to the right of a noncustodial parent to spend time with a child. In cases when parents do not share physical custody of their child, the court may set up a schedule that shows when the noncustodial parent may visit the child. This typically includes a few days each week, holidays, and vacations. Visitation may also extend to other relatives, such as grandparents. In some cases, the court may limit visitation by requiring supervised visitation if the parent is not considered fit to be alone with the child. In rare cases, a court may deny visitation when the parent is a threat to a child or when there is a history of child abuse or sexual abuse.

Bibliography

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