Child Custody

The term “child custody” refers to the legal and hands-on relationship between a parent and his or her child. Custody includes the parent’s right to raise, care for, and make decisions regarding the child. The natural state is for the child’s biological parents to make all decisions involving the child’s residence, healthcare, education, and religious upbringing. However, when couples separate, all of these issues may become contentious. When a child’s custody and upbringing are in dispute, the child custody laws and the court becomes involved. To explore this concept, consider the following child custody definition.

Definition of Child Custody


  1. A decision by the court as to which parent will have the care, custody, and control of a child. Custody may be assigned to one parent, or to both parents jointly.

History of Child Custody

As far back as ancient Roman law, children were viewed as property belonging to the father, who had the unilateral power to sell them, or enter them into slave labor. Mothers had no rights to their children, even if the father died. This possessive attitude continued through to 19th century English common law, in which fathers had the sole obligation to support, protect, and educate their children as they saw fit, and mothers had very limited access to their children in the event of a divorce.

Landmark British legislation in 1839 directed the courts to award to mothers custody of children under the age of seven, and to give mothers visitation rights for older children. The original goal of this “tender years doctrine” was to give over the care of children to the mother only until they were old enough to be returned to their father’s custody. It was, however, the first stepping stone to shared custodial rights.

In the early 1900s, thoughts on gender-based custody did an about-face, the courts determining that mothers were better suited to raise children. This was based in part on a Freudian theory on infant attachment and relationships, though it also took into account the more practical aspect of the father’s frequent absence as he worked to support the family.

In the 1960s, fathers began asserting their parental rights, and courts began considering “the child’s best interest” in determining issues of child custody and new child custody laws. From primary residency, to visitation, to decision-making authority, the American family court system has expanded and refined this system, placing a gender-neutral focus on what is in the child’s best interest.

Uniform Child Custody Jurisdiction and Enforcement Act

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) was enacted in 1997 to combat the issue of parents filing custody actions in other states, in an attempt to get around the jurisdiction and orders in the child’s home state. The UCCJEA states that a child is under the jurisdiction of the court in the child’s home state. The child’s home state is defined as the state in which the child has lived since birth, or for six consecutive months immediately prior to the custody action. Other provisions of the Act outline how the child’s home jurisdiction is determined in other circumstances.

Types of Child Custody

Parents navigating the mine field of child custody laws often become confused, as there are many legal terms bandied about. For instance, legal and physical custody are separate issues, visitation, rights to attend a child’s functions, and even financial support are issues decided by the court in the event parents cannot agree. The court-ordered custody arrangement often becomes part of the divorce decree, though it may later be altered if there is a change in circumstances.

In all states, joint custody is preferred, as the courts feel that it is important for children to have contact with, and be parented by, both parents. Circumstances, however, may necessitate other arrangements. A child custody and support order includes which parent the child will live with, how visitation will occur, who gets to make critical decisions regarding the child, and who will provide financial support.

Legal Custody

Legal custody is a separate issue from physical custody, as it has nothing to do with where the child lives, and everything to do with who has the right and obligation to make important decisions regarding the child’s care and upbringing. Legal custody entails making decisions about such issues as the child’s daily routine, schooling, daycare, healthcare, and religious upbringing. In most cases, parents share joint legal custody, which means they must consult one another regarding major decisions. If one parent makes a habit of making such decisions without consulting the other parent, he or she may have legal custody rights taken away.

In many cases, hostilities between the parents, or abuse on the part of one parent, makes such communication impossible, or is not in the children’s best interest. This is a situation in which sole legal custody may be granted to one parent, based on which parent is seen as being the most reasonable, and able to make the proper choices.

Physical Custody

Physical custody refers to the day-to-day care of a child, and where the child will primarily live. Even when joint physical custody is ordered, primary physical custody usually resides with one parent (the “custodial parent”), and the other parent (the “non-custodial parent”) will get visitation rights.

  • Joint Physical Custody is often worked out between the parents, according to their schedules, allowing the children to stay with the parent when he or she is available to take care of their needs. This is referred to as a “parenting plan.” In the event parents cannot agree, the court imposes a custody and visitation schedule. While the goal of joint custody is equally shared custody, reality has caused the courts to order “significant periods” of physical custody to ensure children have “frequent and continuing contact” with both parents.
  • Sole Physical Custody may be ordered in cases in which one parent is seen to be unable to provide a healthy and stable living environment for the children. This may occur when one parent abuses drugs or alcohol, is actively engaged in a criminal lifestyle, or is violent or abusive towards the children or others. Sole physical custody may also be awarded to one parent when the other parent is seen to be keeping the children from, or alienating them against, that parent.

Example Custody Situations

Amicable Joint Custody Arrangement

When they get divorced, Marie and Edward decide to work out shared custody of their two children. Both parents work, but because Edward has moved across town, and Marie is staying in the family home, they decide the children will live primarily with their mother, where they can remain in their neighborhood school. The children will stay with their father every other weekend, as well as spending time with him two evenings a week until bedtime. Marie and Edward also share joint legal custody, consulting with one another to make decisions regarding the children.

Joint Physical/Sole Legal Custody

Candy and John have a turbulent divorce, and cannot agree on issues regarding their 3-year old son. John argues about every daycare provider Candy proposes, and when he has their son for visitation, he often fails to return him as scheduled. In addition, friends report hearing John tell their son “Mommy is mean,” and “Mommy is bad, she makes Daddy sad.” When Candy asks the court for a change in custody arrangements, the judge determines that John is uncooperative, likely to disobey the custody order, and is actively alienating the child against his mother. The court orders primary physical, and sole legal, custody to the mother, with the father having weekend visitation with strict orders to return the child on time.

Sole Custody/Supervised Visitation

When Helen and Zack divorce, Zack seeks sole custody of their daughter, stating Helen is an alcoholic, and leaving the little girl with her unsupervised would be dangerous. After speaking with the parents and the little girl, and after completing an investigation into the mother’s behavior, the court representative determines that the mother’s alcoholism indeed makes her unfit to care for the child. Zack is awarded sole legal and physical custody, and Helen is allowed to visit the little girl only at a supervising agency. The mother is ordered to attend AA meetings, or to enter rehab, after which she may apply for a change in custody status.

How to Get Custody of a Child

In situations in which the parents simply can’t agree on custody and visitation issues, they must go through the process of obtaining a court order. Most states use some form of alternative dispute resolution (“ADR”) or mediation to come up with a parenting plan before the matter is taken to the judge. During the ADR process, each parent submits a reasonable plan for custody and visitation to the mediator, who then sits down with both parents to work out an agreement.

If the parents cannot come to an agreement during this meeting, the mediator, who also meets privately with the children, creates a parenting plan that is in the best interests of the children. It is the mediator’s job to weed through heated arguments and allegations, as well as to determine whether one parent is trying to keep the children from the other for no valid reason. While the judge has some discretion, the mediator’s recommendation most often becomes the court order.

Common Considerations in Making a Custody Order

When a court is making an order for child custody and visitation, it must determine what is in the child’s best interest. To do this, the judge considers a number of factors, including:

  1. The length of time the child has been in the actual care of one parent or the other
  2. Any agreement reached by the parents regarding custody and residence of the child
  3. The child’s adjustment to home, school, daycare, and community
  4. Each parent’s ability and willingness to respect and promote the relationship between the child and the other parent
  5. Any allegation or evidence of spousal abuse
  6. Any allegation or evidence of child abuse, whether involving this child or any other
  7. Whether either parent is required to register as a sex offender, or resides with a person who is required to register as a sex offender
  8. Whether either parent has been convicted of abuse of any child, or resides with a person who has been convicted of child abuse

Common Ways to Sabotage Custody or Visitation

Divorce and child custody often become hot-button issues when any relationship ends. Letting anger toward the other spouse get in the way of the parent-child relationship is a sure way to lose custody, or to get an order for limited visitation. Common mistakes include:

  • Alienation of Affection – occurs when one parent puts down or disparages the other parent, either directly to, or in the presence of the children. This also includes attempting to keep the children from the other parent.
  • Physical Confrontations – engaging in physical contact with the other parent or children in anger instills fear, if not physical injury. Making physical contact with another person in anger is considered battery, and is illegal.
  • Criticizing the Other Parent – criticizing the other parent to family members, friends, co-workers, case workers, or others is likely to get back to the other parent, the children, and the court. This may be seen as alienation of affection, or a sign of non-cooperation.
  • Using Child Support as a Weapon – failing or refusing to pay child support because of custody and visitation disagreements not only shows contempt for a court order, but is likely to be seen as combativeness and non-cooperation.
  • Denying Telephone Contact – keeping children from contacting the other parent by telephone during visitation is generally considered to be keeping the children from the other parent, and thus alienation.
  • Removing Children from School – the removal of children from school or daycare without permission from, or notice to, the custodial parent triggers suspicions of non-cooperation or even risk of flight.

Related Legal Terms and Issues

  • Alternative Dispute Resolution – The resolving of disputes by means other than litigation. In a family court environment, this refers to mediation of custody and visitation.
  • Child Custody Mediation – The process by which a court-appointed mediator helps parents reach a custody and visitation arrangement that is in the best interests of the child.
  • Allegation – An assertion or claim that someone has done something wrong or illegal, typically made without actual proof.
  • Sex Offender – A person convicted of a crime involving sex, including rape, molestation, and production or distribution of child pornography.