Custody

The care, possession, and control of a thing or person. The retention, inspection, guarding, maintenance, or security of a thing within the immediate care and control of the person to whom it is committed. The detention of a person by lawful authority or process.

For example, in a BAILMENT, the bailee has custody of goods delivered to him or her in trust for the execution of a special object upon such goods.

The term is flexible and may mean actual imprisonment or the mere power—legal or physical—of imprisoning or assuming manual possession. A petitioner must be "in custody" to be entitled to HABEAS CORPUS relief, which provides for release from unlawful confinement in violation of constitutional rights. Custody in this context is synonymous with restraint of liberty and does not necessarily mean actual physical imprisonment. Persons who are on PROBATION or who are released on their own recognizance are "in custody" for purposes of habeas corpus proceedings.

CHILD CUSTODY, which encompasses the care, control, guardianship, and maintenance of a child, may be awarded to one of the parents in a DIVORCE or separation proceeding. Joint custody is an emerging concept that involves the apportionment of custody between the parents during specified periods of time. For example, a child may reside with each parent for six months each year.

Jurisdiction of courts over custody disputes has been heavily litigated, especially in child-custody cases. In the past, some parents sought to obtain custody over their children by removing them from one state, then seeking to obtain custody through a decree in another state. The federal and state governments have sought to prevent this occurrence through the enactment of a series of statutes. In 1967, the COMMISSIONERS ON UNIFORM LAWS approved the Uniform Child Custody Jurisdiction Act, which was eventually adopted in every state. The act provides that a state court will not accept a custody case unless it has original jurisdiction or unless the state with original jurisdiction relinquishes it. The Commissioners on Uniform Laws updated the law in 1997 with the approval of the Uniform Child Custody Jurisdiction and Enforcement Act, which more than 30 states have adopted. Congress has enacted similar legislation, including the Parental KIDNAPPING Prevention Act (28 U.S.C.A. § 1738A [Supp. 2003]). That statute requires that a state give FULL FAITH AND CREDIT to another state's custody order.

The jurisdiction of federal courts over custody of ALIENS has also become a significant issue with the enactment of several anti-TERRORISM statutes since the late 1990s. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996), both of which removed much of the power from federal courts to review cases involving immigrants who are held in custody for certain crimes. Several legal commentators criticized the application of these statutes due to their limitation of the habeas corpus rights that traditionally are extended to aliens. Commentators have similarly raised questions with respect to orders issued by President GEORGE W. BUSH, which limit the ability of federal courts to review cases of suspected terrorists who are held in custody.