Parent and Child

Parents usually have a legal right to custody of their own offspring. The Supreme Court has established that the right to CHILD CUSTODY by a parent is constitutionally protected. The general presumption of the courts is that a child's welfare is protected best when the natural ties of mother and father are preserved. In the absence of clear evidence that a child is in danger, the state must not interfere with the judgment of the parents.

When the two parents do not live together, the question arises as to where the child will reside. In some cases, one parent will agree to relinquish custody to the other parent without giving up any other parental privileges. Although the custodial parent supervises the child's daily care, the noncustodial parent ordinarily has the right to be told about significant occurrences in the child's life. In addition, the noncustodial parent is usually entitled to visit the child at regular intervals. The noncustodial parent may seek a change in custody arrangements if circumstances so mandate.

If separated or divorced parents cannot agree on custody arrangements, the court will intervene. The court considers the circumstances of each case in light of a parent's ability to support and care for the child. In all custodial decisions, the best interests of the child are of paramount importance.

A battle for custody of a child does not always involve the parents. Custody is frequently sought by other relatives, including grandparents, uncles, aunts, or others, such as stepparents or foster parents.

In the event that a child is illegitimate, the unwed mother has a primary custody right that traditionally could not be defeated by the father. However, the Supreme Court has recognized the unwed father's interest in his child and the potential ability to obtain custody or VISITATION RIGHTS (Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 614 [1983]).

In many families, grandparents play an important role in the upbringing of children. When the parents of a child separate and divorce, many of these grandparents continue to play an active role in the children's lives. Every state has enacted legislation that allows a court to grant visitation rights to grandparents if the grandparents meet certain criteria. Such criteria often require that the visitation is in the best interests of the child, that one of the parents is deceased, and that the grandparent has cared for the child for a significant period of time prior to filing the petition.

In Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the U.S. Supreme Court held that a grandparent visitation statute in the state of Washington, which allowed a court to grant visitation rights to any person at any time if it was in the best interests of the child, was unconstitutional. Noting that this broad statute placed a substantial burden on the traditional parent-child relationship, Justice SANDRA DAY O'CONNOR held that the statute denied parents SUBSTANTIVE DUE PROCESS. However, the Court did not hold that all grandparent visitation statutes are unconstitutional, leaving this determination to the state courts. State legislatures have since struggled to draft grandparent visitation and custody statutes that remain constitutional under this decision.