The legal arrangement for the guardianship of children whose parents divorce or do not marry.
Custody involves the authority to make decisions governing children's welfare, the responsibility of caring for them, and the provision of visitation rights if there is a noncustodial parent.
Types of custody
The parenting arrangements of divorced or unmarried couples usually fall into one of four categories. In sole custody, one parent (the custodial parent) is largely responsible for the care of the children. Although decisions about visitation schedules, holidays, and other such matters can be jointly decided by both parents, the custodial parent has ultimate authority to make decisions concerning the child (unless these decisions violate the custody agreement itself). The noncustodial parent has visitation rights. In the past, sole custody arrangements traditionally consisted of having children live with one parent and visit the other on alternate weekends. Today the trend is toward having children spend more time with the noncustodial parent, which relieves some of the burden placed on the custodial parent and allows for a stronger relationship between the children and the noncustodial parent. Since the noncustodial parent has usually been the father, modern practice also acknowledges the fact that many fathers want to play a greater role in their children's lives.
Joint custody involves two different considerations: who has authority to make decisions governing the children, and where the children will live. Joint legal custody means that parents share equally in making decisions affecting their children, but it does not necessarily dictate where the children will live. Within the joint custody agreement, a separate designation of joint physical custody stipulates that parents will share the residential responsibility for their children, even if the time spent living in the two residences isn't equally divided between them.
In split custody (as its name implies), the children are split up, with each parent taking primary responsibility for one or more of the siblings. Each child has an established visitation schedule with the noncustodial parent. Split custody can actually take place under either of two legal arrangements. Each parent can have sole custody of the children who live with him or her, or both parents may share joint custody of all the children and be appointed only as the primary physical custodian of the children in their care. Split custody is the least common custody arrangement.
Coparenting (not a legal term) describes a situation in which two parents cooperate as closely as possible in sharing all facets of child rearing. In addition to having both joint legal and physical custody, the parents arrange to divide responsibility for the day-to-day tasks involved in child care, such as chauffeuring the children, attending school activities and teacher conferences, purchasing clothing and other necessities, and taking the children to doctor appointments.
Historical background
Legal customs regarding the awarding of custody have changed with diverging social conditions and attitudes. Before the 19th century, custody was considered a simple property arrangement and, since very few women owned property, men received custody of the children when a couple divorced. In the 19th century, as attitudes toward children became more sentimental, the prevailing legal attitude toward custody was revolutionized by the "tender years" doctrine—the idea that young children have special needs that can only be filled by their mothers. This notion was reinforced by the idealization of motherhood that accompanied 19th-century industrialization, with its "separation of the spheres," wherein men were increasingly employed outside the home, while women were expected to confine their aspirations and activities to the domestic sphere.
At first, mothers were awarded custody of children up to the ages of about five or six, after which point the children were returned to their fathers. Eventually, however,
the "tender years" were extended upward until, by the early 20th century, mothers were routinely awarded permanent custody of both younger and older children. As the century progressed, the theories of Sigmund Freud and other psychologists gave renewed support to the mother in custody decisions. In the early 1950s, the famous British psychoanalyst John Bowlby reinforced this preference through his studies of maternal deprivation in European war orphans. By the 1960s, a father had to prove that his wife was mentally incompetent, abusive, or addicted to drugs or alcohol in order to gain custody of his children.
Two developments in the 1970s set the stage for a shift in the prevailing attitude toward child custody. The women's movement, with its challenge to gender stereotypes both at work and at home, helped instigate a reassessment of the prevailing practice of gender-based custody settlements. At the same time, clinical researchers began paying unprecedented attention to the role of fathers in their children's lives and to their effect on child development.
By the early 1990s, joint custody had become the most common custody arrangement. The number of states with joint custody statutes grew from three in 1980 to 48 in 1992. Today joint custody is the preferred arrangement in 19 states. In 24 states, it can be requested by the parents, and in five states it can be decreed by a judge. Today many couples draw up a parenting plan that includes a legal custody arrangement but goes further to outline how they will cooperate in specific areas of child rearing, including routine care, residence, holidays, and financial support, and how they will resolve impasses when these occur.
Residential arrangements
While it is clear that children benefit from custody arrangements that enable them to maintain close relationships with both parents, there is still controversy about the merits of joint physical custody. There has not been sufficient research to determine the effects of alternating residences compared with having one primary residence. Similarly, there is little conclusive evidence as to whether one type of schedule is preferable to another (i.e., half a week at each parent's house compared with alternating weeks). Experts agree, however, that a true spirit of cooperation between the parents is necessary in order for joint physical custody to work, and that it is not beneficial if there is intense conflict and hostility between the parents.
Children's developmental needs should also be taken into account in deciding on a residential arrangement and schedule.
Infancy and toddlerhood
Very young children need frequent contact with both parents for bonding to occur. On the other hand, frequent overnight visits can threaten the continuity and stability that are also primary needs at this stage. When the infant or toddler does spend time in two different households, it is important to maintain consistency in feeding schedules, nap times, and other aspects of care so that the child will feel that the world is a stable and predictable place. Overnight visits can become more frequent as the child gets older, and the telephone can also be an important source of contact. Weekend visits generally work out well for toddlers.
Preschool
Children of preschool age need to feel that they are important to the parent of the opposite sex while at the same time obtaining reassurance that the same-sex parent hasn't rejected them. Divorce, in particular, produces fears of abandonment in children at this age, increasing their natural need for stability and reassurance. Preschoolers are able to manage longer separations from the primary caregiver than infants or toddlers. Joint physical custody is often workable with preschoolers if care has been shared by both parents prior to the divorce. Alternation of residence should be for short blocks of time, generally about half a week. A common schedule is Wednesday-Saturday and Sunday-Tuesday with parents alternating Saturday nights.
School age
At this age, school continuity and access to friends become important considerations for the child. Boys in the primary school grades have a strong need to maintain regular contact with their fathers, even if they no longer live in the same home. School-age children tend to be very concerned and literal-minded about the fairness of custody arrangements. Joint physical custody can be successful if both parents continue to live in the same neighborhood. Although living in two households is difficult for the child, the effort required is balanced by the value of maintaining close contact with both parents.
Adolescence
Teenagers aren't as dependent as younger children on their parents. In adolescence, involvement with peers and social activities becomes a priority, and the young person becomes preoccupied with carving out an independent identity. Many children who have alternated residences while they were in grade school go back to having one primary home base when they enter their teens. It is important to spend time regularly with the nonresidential parent, but the emphasis should be on the quality rather than the quantity of that time. Adolescents need to have a say in planning their residential and visitation
arrangements, and parents need to remain flexible in dealing with their teenaged children.
Custody problems
Custody arrangements, which are difficult even when parents cooperate with each other, can lead to serious problems in families where parents are preoccupied with their own feelings of hostility toward each other, especially when access to children becomes a tool for revenge. Custodial parents may deny visitation to their exspouses in order to punish them or because of disagreements over parenting practices. On the other hand, some divorced parents fail to meet even the minimum visitation requirements of the divorce agreement. However, if a parent keeps up child support payments, there are few legal consequences for failure to stick to the visitation schedule.
Allegations of either physical or sexual abuse on the part of a parent can be an effective way to have custody or visitation rights revoked. It is not uncommon for such allegations to be made falsely for revenge motives, and defense against these accusations is difficult. Another extreme expression of parental conflict is the kidnapping of children by noncustodial parents. Most kidnappings involve children between the ages of three and nine and occur shortly before or after a divorce. There is a link between domestic violence and parental kidnapping, and the kidnapping is often preceded by threats. Parental kidnapping is a federal offense, and, in accordance with the Federal Uniform Child Custody Jurisdiction Act, custody and visitation orders issued anywhere in the United States must be honored in all 50 states. However, there are no international agreements that cover parental kidnapping, and parents who take their children out of the country can avoid prosecution.
