Custody and Child Support

Upon dissolution of a marriage, states require that the courts address child custody as part of the divorce judgment. This involves issues of both legal and physical custody, sole or joint. Legal custody involves the right to make major decisions affecting the child, whereas physical custody addresses the day-to-day care and living arrangements for the child. Many courts will rule separately on legal and physical custody, and for each, whether such custody is vested in one parent or both. All rulings are subject to modification upon petition of either party to the court, as a result of an alleged significant change in circumstances.

Historically, early common law gave custody of the children to the father, as children were considered "property" in the eyes of the law. This was followed by the Talfourd Act, which instructed the courts to award custody of children "of tender years" to their mother. Many states then created a legal presumption that the mother should be granted custody. The presumption corresponded appropriately with social mores and attitudes of the time that endorsed the perception of female parents as nurturing, domestically-oriented care-providers. Finally, in the latter half of the twentieth century, courts have modified statutes to remove any presumption of gender fitness for custody, for the most part relegating it to the role of a tie-breaker factor, if all else was equal. Courts now rely on judicial discretion and determination of "the best interests of the child." The Uniform Marriage and Divorce Act (UMDA), which, among other things, standardizes the criteria used to determine custody, has been adopted in many states. However, the UMDA criteria are ultimately weighted and factored in conjunction with the considerable latitude and discretion afforded the courts. In any event, a consideration of the child's best interests would theoretically include such factors as the wishes of the child's parents toward custody; the wishes of the child as to his preference for custodian; the child's adjustment to his home, school and community; the interaction and interrelationship of the child with his parents, siblings or others; and the mental, physical and financial health of all individuals involved. In contested battles for custody, most courts will not consider conduct or fault in the marriage on the part of a potential custodian that does not affect his or her relationship with the child. Unless a court has convincing evidence before it that harm may come to the child or a parent, most states prefer shared (joint) custody and parental decision-making. In fact, some courts have now created statutory presumptions of joint custody, to be ordered absent any convincing evidence that it would not be in the best interests of the child.

Variations abound. Some courts disfavor "split custody" which awards custody of one or more children to one parent, and the remaining children to the other parent. Other courts favor split custody as it has the appearance of fairness. Split custody has been criticized as disruptive of the emotional bond and support gained between siblings, and often leads to polarized feelings. Often when this determination is employed, it is usually to address a temporary circumstance. Another variation is referred to as "bird's nest" custody. The children remain in one home and the parents alternately move in and out. This provides environmental stability to children, instead of being "shipped off" from parent to parent, and often contributes toward more consistent parenting. Still other courts will order alternating or "serial" custody wherein children will live with one parent for a long time (typically a year), then switch to the other. This is to be distinguished from joint custody in that the custodial parent has sole, not joint, custody during the time the child is with him/her. Finally, a court may deem both parents unfit for custody, or the parents have voluntarily relinquished their right to custody. In these circumstances, third parties may be granted custody, including grandparents, godparents, stepparents, and family friends. However, in most jurisdictions, there is a presumption that the biological parent has a "natural" right to the child superior to the claims of third parties.

Custody principles have been taxed to address arguments over frozen embryo, domestic pets, and children born outside of the marriage. Conversely, in the absence of fit biological parents, courts have applied "best interest" criteria in granting custody to adoptive parents, "psychological parents" (those who have established a significant emotional bond with a child) and (at least in Michigan and Wisconsin) to "equitable parents" (typically, a spouse who is neither a biological nor adoptive parent to the child).

In addition to the common "best interests of the child" criteria, courts vary in their consideration of other factors in awarding custody. Additional criteria frequently weighed are the parent's ability to meet the needs of the child, the moral fitness and conduct of the parent, a history of any child abuse, the geographic distance between the parents' homes, the hostility of one parent toward the other, and the sexual orientation of the parent. In the 1984 case of Palmore v. Sidoti, the U.S. Supreme Court ruled that it was unconstitutional for a court to consider race when a noncustodial parent petitions a court for a change in custody. The court held that societal stigma, especially a racial one, cannot serve as a sole or determinative basis for a custody decision. In many state courts, this argument has been raised in defense of granting custody to homosexual parents, but often fails for its distinguishing facts.

Most custody decisions are made by a judge or magistrate within the state's court system. In a handful of states, a jury may hear arguments and decide. Many states also provide for the appointment of an independent guardian ad litem to represent the child's interests so that the child is shielded from being a party to the dispute, or actually having to testify or respond to the court's inquiry. In such cases, the guardian may be a court-assigned stranger, or a nominated family relative or attorney. Many courts also provide for mediation or arbitration of custody disputes. Often the mediations are confidential by statutory provision, and serve merely to provide a forum for extra-judicial resolution or recommendation. In many states, the court may order a custody investigation and/or solicit recommendations by independent or court-appointed evaluators (mediators, "Friend of the Court" appointees, etc.). Additionally, statutes often provide courts with the power to compel parents to participate in mediation to resolve custody disputes before bringing the matter before the court. A court's power to adjudicate custody matters is generally terminated when the child either reaches the age of majority, or is "emancipated" by getting married, joining the military, or is adopted by other parents. This must be determined judicially, not by the parents or child. There is continuing jurisdiction of the courts in some circumstances, as when the child is legally incompetent.