Child Custody
Custody of children guardianship are both legal terms that are sometimes used interchangeably however, they are very different. Child custody describes the practical and legal relationship between parents and their child(ren), including the rights of the parents to make decisions for the children, and the duty of care of the parents for the children.
Child custody issues often arise in legal proceedings that involve the dissolution of marriages, annulments or other circumstances where children are involved. Typically the issue of which of the two parents the child will live with is decided using the standard of the best interests of the child.
Brief Historical Background
Throughout history, up til about the 1900s, children were seen mainly as property and and economic assets due to their valuable labor. The father had the absolute right to control and have custody of his children, even in the rare occurrence of divorce. In the nineteenth century, more emphasis was placed on children’s education and nurture as well as the value of child labor decreased. The concept of “best interest of the child” was developed and gradually, the mother gained favor as being the better parent to handle the needs of children. This brought the shift of child custody from the father to the mother. In the twentieth centuries, the struggle for equity between men and women in the eye of the law caused another shift in child custody, which fathers regaining ground.
In the 1970s a general shift towards joint custody and biological parents gained more custody rights over that of non-biological parents. These shifts were important considering the increasing population of single parents, as well as reproductive technology advances.
Precedent Setting Cases
One interesting and important cases involving child custody is that of Troxel versus Granville from 2000. The paternal grandparents of 2 girls petitioned for visitation for their granddaughters.
The mother conceded to some visitation but not to the extended visitation as requested. The US Supreme Court ruled that the biological parents has the fundamental right to choose how to raise his/her child as he/she sees fit. This decision overturned the state law of Washington that allowed a third party to petition for visitation over parental obligations.
Another central case is that of O’Donnell-Lamont from 2004. In this case the grandparents petitioned courts for custody of their two grandchildren. The children had spent significant time with the grandparents during the time when the parents were married, as well as when the parents separated. When the mother died suddenly, the father moved away and took the children with him. The father had a history of anger management issues and had a restraining order placed on him prior to the mother’s passing. The trial court awarded the grandparents custody, the Court of Appeals reversed this decision and then, finally, the Supreme Court of Oregon sided with the trial court. This decision cited the legal concept of the best interest of the child.
Defenses
When considering child custody, there are certain criteria that are investigated. Therefore, there aren’t defenses but instead these factors should be considered when petitioning a court for custody. As the court attempts to reach the decision based on the best interests of the child, factors considered include: the parent’s physical and mental health, the lifestyle of the parent, social factors of the parent (ie is the child exposed to any second-hand smoke, has there been history of any child abuse etc), the attachment and emotional bond that exists between the child and parent, the ability of the parent to provide guidance to the child, the ability of the parent to provide the necessities of life (ie shelter, food, medical care, clothing) and, if the child is old enough, does the child have a preference.