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Family Law

Child Custody

During a marriage, all custodial rights are exercised by both parents. These include decisionmaking power over all aspects of upbringing, religion, and education, as long as the parental decisions and conduct stay clear of the neglect, abuse, and dependency laws. Upon divorce, that power traditionally went solely to one parent who obtained custody. Traditionally, the VISITATION RIGHTS given to the noncustodial parent constituted little more than a possessory interest. This made the custody decision upon divorce a significant one: the relationship between the noncustodial parent and her or his children would change, as the parent would lose the ability to shape decisions affecting the children.

In the United States, since the nineteenth century, mothers traditionally gained custody of children. In the late twentieth century, changes in marital and social roles have led to fathers assuming duties once thought to be the exclusive province of mothers. This in turn has led to fathers showing more interest in claiming custody and to courts granting fathers custody. Yet the vast majority of custody dispositions still go to the mother.

From a dissatisfaction with custody decisions has emerged the concept of joint custody. Under joint custody, legal custody (the decision-making power over the child's conduct of life) remains with both parents, and physical custody goes to one or the other or is shared. The concept has met with mixed reactions. If both parents are reasonable, both may be able to participate fully in decisions that would have been denied one of them. On the other hand, joint custody is likely to be harmful if the parents play out any lingering animosity, or confuse the child with conflicting directions, or are simply unwilling to agree on basic issues involving the child's welfare.

Beginning in 1980, the laws governing custody disputes have been guided by federal statutes. A 1980 amendment to the JUDICIARY ACT (28 U.S.C.A. § 1738A) authorized federal rules that control the enforcement and modification of custody decrees. When in conflict, these rules supersede state statutes, including the Uniform Child Custody Jurisdiction Act (UCCJA), which all states have enacted in some version. The UCCJA was created to deal with interstate custody disputes. Before it was passed, a divorced parent who was unhappy with one state's custody decision could sometimes obtain a more favorable ruling from another state. This led to divorced parents' KIDNAPPING their children and moving to another state in order to petition for custody.

The UNIFORM LAW COMMISSIONERS strengthened the original UCCJA in 1997 when it approved the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Many of the provisions are the same as those in the original statute, but the new uniform law strengthened the enforcement procedures from the original UCCJA. Several of the new provisions are designed to expedite proceedings for determining proper jurisdiction in different states, including communication between judges in the two states. Thirty states have adopted the updated UCCJEA.

Despite the enactment of the original UCCJA, the problem persisted. In 1980, Congress passed the Parental Kidnapping Prevention Act (28 U.S.C.A. § 1738A), which aids enforcement and promotes finality in child custody decisions, by providing that a valid custody decree must be given full legal effect in other states. In an international context, in 1986, the United States adopted the 1980 Hague Convention on the Civil Aspects of International Child Abduction (42 U.S.C.A. § 11603). The convention was designed to facilitate the return of abducted children and the exercise of visitation rights across international boundaries.

With the growing number of disputes among parents regarding custody and visitation of children to the marriage, states have recognized that grandparents often play an important role in the lives of their grandchildren. Surveys by the AMERICAN ASSOCIATION OF RETIRED PERSONS (AARP) suggest that more than 80 percent of grandparents responding said that they had seen their grandchildren within the previous month. Each of the 50 states has adopted provisions in their family laws allowing visitation for grandparents under certain circumstances.

Such laws have come under attack by parents, who argue that giving grandparents visitation rights infringes on their right to raise their children as they see fit. The U.S. Supreme Court, in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), addressed this

Jennifer and Gary Troxel, shown outside the Supreme Court building in January 2000, used a Washington state child visitation statute to sue for the right to visit their grandchildren.

issue for the first time. The court ruled that the state of Washington's grandparent visitation statute violated the Fourteenth Amendment's DUE PROCESS CLAUSE, as it interfered with the rights of parents to make decisions concerning the care, custody, and control of their children.

The State of Washington, under section 26.10.160(3) of its Revised Code, permitted "any person" at "any time" to petition a state family court for visitation rights whenever "visitation may serve the best interest of the child." Jenifer and Gary Troxel used this statute to petition a Washington court in 1993 for the right to visit their grandchildren, Isabelle and Natalie Troxel. Tommie Granville, the mother of the children, opposed the petition. Brad Troxel, the son of Jenifer and Gary, had shared a relationship with Tommie that ended in 1991. Though they never married, they had Isabelle and Natalie. After they broke up, Brad brought his daughters to his parents for weekend visits. When Brad committed suicide in 1993, his parents sought to continue the weekend visitations. Tommie refused, however, allowing them one short visit per month. This led to the filing of the visitation petition in which the Troxels asked for two weekends of visitation per month and two weeks of visitation per summer. The family court ultimately ordered visitation one weekend per month and one week during the summer, along with four hours on each grandparent's birthday.

The Washington Court of Appeals and the Washington Supreme Court both found that the statute unconstitutionally infringed upon the fundamental right of parents to rear their children. It noted that the U.S. Constitution allows the state to interfere with this right only to prevent harm to the children. The Washington statute did not require a showing of harm. In addition, the statute permitted "any person" to file a visitation petition. The Washington courts found that this provision was too broad. In their view, parents have a right to limit visitation of their children with third persons.

The Troxels appealed to the U.S. Supreme Court, which upheld the decisions of the Washington courts. Justice SANDRA DAY O'CONNOR, writing for the majority, acknowledged that the demographics of the American family had changed in the past one hundred years. In 1998, almost 4,000,000 children lived with their grandparents and 28 percent of all children under 18 lived in single-parent households. Though she noted that these changes helped explain the extension of statutory visitation right, there were "obvious costs" that came with these changes. The primary cost was the "substantial burden" placed on the "traditional parent-child relationship." Invoking the recognized liberty interests of parents "in the care, custody, and control of their children," the Court found that the statute unconstitutionally interfered with the parent's DUE PROCESS rights.

The Court in Troxel noted that the decision did not invalidate all grandparent visitation statutes. The breath of the Washington statute— for example, the fact that any person could seek visitation—was primarily responsible for the Court rendering it unconstitutional. As the AARP and other groups condemned the decision, state legislatures in 2001 and 2002 sought aggressively to amend their statutes to comport with the Troxel decision. Each of the 50 states still has a statue providing for visitation, but many now require grandparents to demonstrate harm to the child if visitation is not allowed or to show that one of the parents to the marriage is deceased.

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