When two parents decide to separate or get a divorce, an important part of this process is the children. With a divorce rate of 40-50% among Americans, more and more children and parents are going through the child custody process (Marriage). In fact, 50% of children experience their parents’ divorce (Children). Child custody, or the determination of parental rights and obligations to a child in the event of divorce or separation (Understanding), can be decided in many ways and can take many forms. However, in all cases the most important aspect is that the decision made is made in the “best interests of the child” (Doskow).
One commonly known issue with child custody is that women are more likely to achieve custody than the father. According to an analysis of the 2011 National Survey of Family Growth conducted by the Pew Research Institute, mothers do twice as much child care as fathers even before the divorce (Meyer). Due to this factor, the courts often recognize that the best interest of the child may be to give custodial rights to the parent with the strongest bond to the child. Thus, in many cases mothers may be granted custody over fathers.
There are four main types of child custody: physical, legal, joint, and sole custody. Physical custody simply refers to who the child lives with (Understanding). Physical custody can be sole or joint. In a case of joint physical custody, a child take turns living with each parent rather than living solely with one parent and having visitation with the other.
Legal custody gives a parent the right to make decisions which affect the child (Understanding). If there is a sole legal custody, the custodial parent makes all decisions regarding the child while the non-custodial parent has no legal right to make such decisions. The non-custodial parent may still have visitation rights. Legal custody can also be joint, in which case each parent would have equal say in matters regarding the child and disagreements are handled by the court.
In a joint custody case, each parent earns custodial rights to the child. A joint legal and physical custody agreement is rare because it often means that the parents share all rights to the child, including the right to live with the child. The child in such a case would be bounced from home to home and parents may not always agree on what is best for the child. Joint legal custody, in which each parent has legal custodial rights to the child but the child lives primarily with one parent and has visitation with the other, is often a better choice.
Sole custody refers to a type of custody in which one parent has both legal and physical custody (Understanding). The non-custodial parent may be granted visitation depending on the circumstances, but the child lives with the custodial parent. Additionally, any legal decisions made regarding the child must be made by the custodial parent. In 29% of cases, no third party is involved at arriving at the decision for sole custody because in 51% of custodial cases, both parents agree that the mother will be the sole custodial parent (Meyer).
Custody can be determined in many ways, but in most cases the parents are able to reach an agreement without involving courts. In fact, only 4% of custody cases go to trial and only 1.5% of these cases completed custody litigation (Meyer). If a case does have to go to court, there are many aspects that a judge will consider: the child’s age, the parents’ living situations, each parents willingness to support the child’s relationship with the other, the child’s relationship to each parent prior to the divorce or separation, the child’s preference, which parent offers the most continuity and stability, and the involvement of abuse or neglect (if applicable).
A child’s age will play a key role in determining how the divorce will affect them. In a study of children between 4 and 5 years old, only 20% coped “well” with divorce (Doskow). Additionally, children need different things from their parents at different ages. For example, if a child is still of breastfeeding age the mother is likely to be granted custody. For younger children, their preference may be less important to a judge than trying to maintain normalcy for the child.
In the essence of maintaining normalcy for the child, the living situation can also play a key role. For example, if a parent is granted the family home in the divorce they may be more likely to get custody of the child as well (Doskow). Judges often examine which parents’ living situation most reflects their desire to spend time with their child. Location of the child’s daily activities, such as school or extracurricular clubs or sports, are also important (Doskow). If one parent lives closer to these activities they may be more likely to be granted custody as they can more easily provide continuity of the child’s life prior to the divorce.
Finally, the parents’ proximity to each other can help determine whether custody should joint or sole and how much visitation the non-custodial parent will receive. The closer the parents are, the easier joint custody or more visitation for the non-custodial parent will be. Cooperation of parents is key to making divorce easier on children. Therefore, a judge may frown upon one parent badmouthing the other or trying to keep their child away from the other parent (Doskow).
If a child clearly has a stronger relationship with one parent, the judge will likely take this into consideration. This is especially prevalent because parents who were primarily absent prior to the divorce may suddenly desire more time with a child simply to “win” against the other parent (Doskow). Since the aim of child custody is to do what is best for the child, it is important to recognize that a parent who was highly involved with the child prior to the divorce may have an advantage.
The child-parent relationship prior to the divorce may determine a child’s preference, which is another aspect that judges may consider. Generally speaking, in cases involving a child of at least 12 years of age the judge will find out their preference (Doskow). Older children are more capable of making decisions for themselves than younger children and can better understand the consequences for their decisions in the long run, which is why a case involving a five year old may not rely as heavily upon the preference of the child.
As it should be, abuse or neglect will be highly considered by a judge (Doskow). Visitations may be limited or require a chaperone if there is evidence of abuse or neglect. In some cases, the non-custodial parent can lose all rights to the child due to their abuse or neglect.
Divorce can be extremely difficult for children. Joint custody cases can be especially hard as one or both parents may be economically motivated and each parent has only a partial commitment to the child (Post). Joint custody does not “sustain the illusion of an intact family” (McKinnon). Instead, the child’s relationship with each parent is weakened and they still experience the grief and anxiety of the divorce. Finally, the arrangement can be extremely demanding.
On the other hand, sole custody often means that one parent has a strong relationship with the child, while the other parent has hardly any relationship. Often it is the fathers who lose their relationship with their child. In fact, 27% of divorced fathers have no contact with their children (Meyer). Both joint and legal cases are unfortunate as both parents are equally important in raising a child.
The most important factor to consider in child custody is the best interest of the child. Child custody determines who makes choice that affect the child, who the child will live with, and to what degree, if any, the non-custodial parent can be involved in the child’s life (Joint). What is “best” for the child depends on the situation. As a parent, it is your job to remain unselfish in making this decision and do what is truly best for your child.
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Doskow, Emily. Divorce Net. NOLO, n.d. Web. 1 July 2015.
“Joint Custody.” FindLaw. N.p., n.d. Web. 4 July 2015.
“The Various Types of Child Custody.” FindLaw. N.p., n.d. Web. 1 July 2015.
“Marriage & Divorce.” American Psychological Association. Encyclopedia of Psychology, n.d. Web. 4 July 2015.
Meyer, Cathy. “Dispelling The Myth Of Gender Bias In The Family Court System.” The Huffington Post. N.p., 10 July 2012. Web. 1 July 2015.
Post, Dianne. “Arguments Against Joint Custody.” Berkeley Journal of Gender, Law, & Justice 4.2 (2013). Web. 1 July 2015.
“Understanding the Difference Between Physical and Legal Custody.” Rocket Lawyer. N.p., n.d. Web. 2 July 2015.