26 Feb Child Custody In America: New Proposals for Child Custody Law
In 2015, around 23 million American children were living in a single parent household. Although many parents are able to reach amicable child custody agreements, many are not and are thus forced to seek legal action for their child custody woes. Child custody is, essentially, the right of a child to have parental care. It is a legal relationship formed between parent and child that ultimately ensures the safety and protection of the minor in the event of legal separation or the dissolution of marriage or partnership. In the case of parental death or incapacity to care for a child, custody is sometimes assigned to the child’s closest living relative, foster, or adoptive parents.
A guardian ad litem is typically a neutral person whom the court appoints for minors, infants, and incompetent people. These individuals are appointed to make legal decisions regarding the child’s care, well-being, and happiness. There are typically six kinds of child custody situations, and they are as follows:
- Physical custody – physical custody means that a parent has the legal right for their child to live with them at their home, apartment, etc.
- Sole physical custody – the child physically lives at one location with one parent. Often times, this is the same location that the child resided before the divorce or separation occurred.
- Joint physical custody – custody is split 50/50 between both parties. With join physical custody, the child resides 50% of the time with one parent and 50% of the time with the other.
- Legal custody – having the right to make decisions about the child’s medical care, religious upbringing, schooling, etc.
- Sole legal custody – one parent has the right to make decisions about medical care, schooling, religious upbring, etc.
Joint legal custody – the decision-making responsibilities regarding medical care, schooling, religion, etc. are shared between both parents 50/50. That is, one parent’ can’t make important decisions without asking the other parent for permission.
If a parent has not been awarded custody rights, he or she is usually given visitation rights, and this parent is legally constrained from taking the child (without permission) from the parent with legal custody.
The decision on child custody is often facilitated by child custody lawyers that are knowledgeable about legalities of divorce and child custody law. However, if both parties disagree, a mediator or judge will likely intervene to help the parties settle upon an agreement. There are many factors taken into consideration by the mediator or judge when deciding custody. Some of these include: the financial ability to care for the child, age of the child, the relationship between parents and child, the child’s preference, the stability of living and work conditions, sexual orientation, and any records of abuse or neglect.
It is common knowledge, affirmed by an analysis done by the National Survey of Family Growth in 2011, that mothers are typically favored in child custody cases because they are often believed to have a stronger bond with the child. Recently, however, the states of Florida and Missouri began reviewing their child custody laws. A new bill on child custody, Senate Bill 250, challenges the concept that one parent should be favored over the other. Under this bill, judges are to presume that a 50-50 custody arrangement is “in the best interests of the child.” Therefore, they can only rule for one parent if there is proof that the other parent has significant issues that would endanger the child.
The logic behind this law is that both parents have a bonded attachment to the child. In fact, in most modern family set-ups, both parents work. The mother is no longer a “plain housewife” who spends all her time bonding with her children. In turn, many fathers work flexible positions, stay at home or work at home so they can have bonding time with their children as well. Interestingly, a similarly revised law for alimony is being discussed that is focusing on the same modern family situation. Both laws require flexibility especially if the divorced couple lives far apart from each other.
Of course, judicial discretion is still applied on a case-by-case basis. The law under consideration will not be retroactive if passed nor will approved divorce settlements have to be renegotiated.
State Senator Tom Lee, who authored the bills, said, “The 21st-century view of the family is that mothers and fathers are equally equipped today to help manage the lives of their children.”
Critics of the bill say that the emotional toll and financial liability of mothers would increase and possibly cause some children to be at risk. Judge Robert Doyle says that the proposed bill reform is a “horrible” idea and that judges should not be guided by what is best for parents but, what is best for the children. He adds that the reform bill would cost more to the state and parents as it will lengthen the time the cases take to work through the judicial system. He also envisions parents bringing forward expert witnesses to testify in their favor, which could give an unfair advantage to the parent with more money to spend on the case.
Studies today show that only 19% of children of divorced parents are cared for under joint physical child custody agreements. These children usually have to travel some distance, live under two sets of house rules, own two sets of clothes and other personal items but appear to “fare better” than children living in a single-parent household, based on a new study published in the Journal of Epidemiology & Community Health.