Paper Due date
Should Brittany Spears get custody of her children?
How is child custody decided by the court?
The standard of law used to award custody in a contested case
With reference to History
- Traditionally, children were considered chattel or possession like personal property and automatically became the property of the father
- Later the standard was replaced by the tender year’s doctrine. That doctrine rested on the basis that children are not resilient and almost any change in a child's living situation would be detrimental to his or her well being, which presumed that mothers were the preferred parent at divorce.
- Best interest of the child is child focused and not concerned with the “rights” of parents
What factors should the court consider about the children?
- Age
- Health
- Special needs
What factors should the courts consider about the parents?
Who has been the primary parent?
Is there any impairment like violence or substance abuse?
Should the court appoint a Guardian Ad Litem for the children?
- An objective outside investigator often help provide guidance to the judge
Precedents in the jurisdiction
In text examples of high profile cases are added for better understanding
Conclusions and recommendations
Lastly I conclude with my opinion on what would be best.
Deciding child custody by courts
A couple is getting a divorce, with all the legality a matter that is of prime importance is well being of the children and which parent or both would get the physical and legal custody of the child. The legal custody involves the decision making matters about the child and are usually shared. During the past century factors affecting child custody cases have been evolving taking into account various factors concerning both the parents. Traditionally they were awarded to the father, changing times and gender equality laws, working parents brought in force new laws that took a mother as a primary care giver with the financials of the child being shared by both the parents.
Physical custody is the arrangement between the separating couple as to where the children will live on a regular basis. It can shared by both the parents wherein the agreement clearly states as to who can have the child for the stated number of days or it can be a single custody where either parent gets the physical custody of the children.
For joint custody it is usually noted that the travel distance between both the parents is not much and a 50/50 time split is possible. More importantly both the parents here need to have a mature outlook and get along well so as to not to disturb an already emotionally conflicted child. If education is taken into account then the child’s school activity is not disturbed and usually one parent agrees to have the larger amount of stay. Custody arrangements are also different for different states wherein some of the states allow the parent with the physical custody to move with the child. To prevent this court approval is needed by the non custodial parent to prove that the child’s move is harmful to the child mentally, emotionally or socially.
Cases are also decided on ‘the best interest of the child’ depending on the state in which one resides. The term usually refers to the deliberations a court takes to decide on the services and actions that would be best suited to the child. They are guiding principles like family integrity, health and safety of child, permanency solutions to avoid the situations of uprooting the child time and again and of course care to be taken so that the child grows up to be a self sufficiently knowledgeable person who is able to take of his basic needs. Some example would be “Connecticut law: socio economic status of birth parent is taken into account whereas Delaware prohibits this in deciding the primary care giver. Alabama law has its sets of jurisdiction rules whereas in California separate tribal and Indian laws and provide the safety net for traditional upbringing.”
Courts consider it preferable to grant joint custody for the child to have an upbringing with the involvement of both the parents. But this involves a lengthier process to set up an equal time split, healthy contact and well nurtured upbringing of the children. Care needs to be taken by both the parents to have healthy debate and not end up having disagreements in front of the children regarding timing, pick and drop schedules, lunch or dinners or any other extracurricular activity which the child may be pursuing.
Here we begin to discuss the pros of shared physical custody with some precedents’ that were set in the various courts regarding the importance of birth/adoptive parent with respect to loving and caring Grandparents. In text citations are provided as examples.
A joint physical custody usually means both the parent meet on a daily or regular basis. This would entail that
- The child grows up under their joint care and if the parents share an amicable relationship it is highly beneficial for the child. He or she will have two permanent homes to grow up, the influence of healthy decision making of both the parents.
- It also serves as friendly ground for parents to maintain a cordial relationship.
- Nobody said child rearing is an easy job. It is mostly 24/7 round the clock job involving quick decisions, a lot of physical movement, school drops and pickups and a host of other chores that wears down a person both physically and financially. Shared custody eases this burden by a large gap. Responsibilities are split and one parent is always in the know that they can depend on the other one to show up and take charge in case of emergencies.
- It gives an equal footing to both the parents and one is not deemed a visitor and is not supervised by a court appointed person. This arrangement inflicts a lot of confused emotions on the child and disturbs the private atmosphere of home. Shared custody avoids this. In every case the court keeps note that the child’s mental and emotional health are not compromised.
- Care should be taken that when seeking external help an over involvement from the Grandparents side may result in visitation suits files by grandparents citing their love and affection. In most cases the custody and visitation is decided by the court in the parents favor even if one parent passes away citing the constitutional rights of birth and adoptive parents.
- It is beneficial for the children wherein a sense of responsibility creeps in and they learn to keep tabs on their belongings at both homes and schedule their assignments and other needs keeping their stay in mind.
- In an already constrained and separating environment that may build up new feelings it gives the child an opportunity to make friends in new places and make a rapport with others at both homes.
Cons of shared physical custody
- Since both the parents of a right to live with the child, the constant moving weekly may cause disturbances and prevent a stable home front from forming in the child’s mind. Adjustment from the child especially in the early days may become an issue and a mature and understanding discussion between both the parents and the children is needed to allay any fears that they may harbor.
- Joint custody can also lead to an increased argument opportunity between couples who never got along.
- A negligent parent may seek to avoid responsibilities if the other parent is more helpful with the children’s chores
- In some situations packing up and moving the children mid week can be hectic and stressfull for the entire family.
- The schedules between both the parents needs to be timed and executed perfectly so that important days and schooling assignments and play dates are not missed by either of them.
- The finances over maintaining of two separate primary homes may prove to be costly for the family together with duplicity of belongings and other personal items needed by the children at all times.
- Because of the above reason it usually ends up that one parent has better finance and can end up being the primary care taker if the court notices the financial input and decides on ‘Who’s more responsible financially’ factor. If decided otherwise the better earning parent is asked to provide extra in the care of the child.
- Another factor that courts look into is if any domestic violence or child abuse case is filed against the parent. This parent will now face a herculean takes proving otherwise. It is usually presumed that this parent would not get the custody. For the parent to prove otherwise court appointed supervisors are send during visitation, probation or community service hours are added to judge character and whether drugs or alcohol were involved. In some cases restraining order may be issued against the abusive parent.
- Moreover according to Section 461 and its sub sections the courts of certain cities can change the parental rights and responsibilities if under the circumstances it finds the child is being neglected or one parents conditions have had an overbearing effect/if the minor child of substantial maturity makes a stable decision for oneself/relocation of the child after prior application and notice and visitation rights of grandparents if one of the parents stands deceased.
- Usually children over 12/15 years of age are given a choice over which home they would prefer and accordingly the court would act and grant a decision. A child’s comfort level is also taken into account and on the wishes of the child the court may revoke joint physical custody leading to extra squabbles and a complete mayhem of the child’s life. Care needs to be taken with attorneys so that such a situation does not arise.
- In a situation where the family is considered intact grandparents will not be allowed to visit the children if the parents do not want so
- In another case grandparental rights were also curtailed as it felt that the surviving parents’ ability to offer a stable home was more beneficial to the child irrespective of the grandchildren’s closeness and the loving relationship they shared.
It can be concluded by adding that taking into account precedent cases only one/surviving birth parent has more of a say even over a grandparent. Even though legally a child can be a minor his or her opinion will be taken into account if his maturity shows that the child is able to make a sound decision. Child custody cases tend to get messy and emotional factors are clearly not defined in the laws over constantly fighting parents.
Works Cited
ARNIS and LUCILLE LAMBERTS, Appellants, vs. JOHN LILLIG, Appellee. No. 670. SUPREME COURT OF IOWA. 2003.
Child Welfare Information Gateway. Determining the Best. 2012. Adobe file. 1 December 2014. <https://www.childwelfare.gov/systemwide/laws_policies/statutes/best_interest.pdf>.
Debi. http://yellowrosesbydeb.com/pros-and-cons-of-co-parenting.html. 28 February 2012. Webpage. 28 November 2014. <http://yellowrosesbydeb.com/pros-and-cons-of-co-parenting.html>.
DIANE SAUL and DAVID SAUL, Appellants, vs. DOMINIK BRUNETTI, Appellee. No. SC94843. Supreme Court of Florida. 1998.
Doskow, Emily. "Nolo’s Essential Guide to Child Custody & Support." Doskow, Attorney Emily. Nolo’s Essential Guide to Child Custody & Support. Ed. Lina Guillen. 2nd Edition. Berkeley: NOLO, October. Webpage. 26 November 2014. <http://www.divorcenet.com/resources/divorce/divorce-and-children/legal-and-physical-custody-children>.
LOIS DANIELS, PLAINTIFF-APPELLANT, v. MICHAEL DANIELS AND DONNA DANIELS, DEFENDANTS-RESPONDENTS. No. 381. SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION. 2005. 28 November 2014.
Persily, Seth. "Joint Child Custody: Do the Advantages Outweigh the Disadvantages?" n.d. www.divorcenet.com. NOLO. 25 November 2014. <http://www.divorcenet.com/resources/divorce-and-children/joint-child-custody-advantages-disadvantages.htm>.
