Although the modern trend in child custody cases is to treat both parents as equals, that is a relatively modern development. Prior to the twentieth century, children were largely treated as the property of their father such that it was all-but-impossible for a mother to gain physical custody of children without the father's consent.
Moving into the twentieth century, the courts adopted what was known as tender years doctrine, which assumed that young children should be placed in the care of their mothers, and it became very difficult for a father to gain custody unless the mother was clearly an unfit parent.
Courts are now expected to treat parents equally, and to make their custody decisions based upon the best interests of the minor children involved in custody disputes.
Custody of a child breaks down into two basic categories:
Physical Custody: A parent with physical custody provides the child's legal domicile or, in simpler terms, the parent provides the child's primary residence. Physical custody involves a grant of authority to live with and care for the child.
Legal Custody: A parent with legal custody has the authority to make or participate in important decisions concerning the life and welfare of a minor child. Decisions that fall under legal custody include such issues as where the child will attend school, significant medical decisions, whether the child should receive psychological counseling, and the child's religious upbringing.
A few states use different terminology to describe custody. Texas, for example, uses the term conservatorship. Legal custody is known as managing conservatorship and physical custody is known as possessory conservatorship. Other states may use terms such as residential custody instead of physical custody.
When one parent is granted primary or sole physical custody, the other parent is normally awarded visitation or parenting time with the children. Parenting time is usually scheduled, although in some cases parenting time may be at the discretion of the custodial parent.
If the court finds that visitation may pose a risk of harm to the children, parenting time may be suspended or may be required to occur under supervision.
An award of custody may involve joint custody, in which both parents share custody and parental authority, and sole custody, in which one parent is vested with that authority. It is common for courts to award joint legal custody to both parents, even when one parent is given primary or sole physical custody.
The differences between sole and joint custody break down as follows:
Sole Custody: A grant of sole or primary custody grants one parent primary or exclusive control over the custody, care, and decision-making for the parents' minor children.
Sole Physical Custody: A parent with sole physical custody provides the children with their sole legal domicile.
Sole Legal Custody: A parent with sole legal custody has exclusive decision-making authority for important decisions affecting the minor children.
Joint Custody: Joint custody involves shared physical custody, control and decision-making for the parents' minor children.
Joint Physical Custody: The child has a legal domicile in the homes of both parents. Parenting time may be split evenly between the parents, but the division does not have to be equal.
Joint Legal Custody: Both parents share equally in important decisions affecting their minor children.
In high-conflict cases or cases involving a largely absent parent, one parent may be given primary or sole physical and legal custody. It is highly unusual for a court to award joint physical custody, but to award sole legal custody to one of the parents.
Parents with joint custody are expected by a court to respect each other's parenting decisions, and to involve each other in important life decisions.
When parents share joint legal custody, the failure to involve the other parent in important decision-making can result in the needless, expensive return to court, to have a judge decide a dispute that would have been best resolved following adult discussion between the parents. A parent who demonstrates to a court a history of refusing to cooperate with the other parent may find that the court ultimately awards primary physical custody, legal custody, or both to the other parent.
When parents are not married, unless and until paternity is established, the child's mother will have de facto sole custody of the child. That is, until the father establishes his paternity through the execution of an affidavit of parentage, or through the conclusion of paternity litigation, the mother is the child's only legal parent and thus is the only person with legally recognized rights to custody.
With the execution and registration of an affidavit of parentage, a formal document that the parents execute declaring themselves to be a child's parents, both parents will normally be deemed to have equal rights to their child.
A father who brings a paternity action to establish parentage, or who is the subject of an action filed by the mother or by the state, may ask for a custody order to be issued at the conclusion of the paternity case. If he is determined to be the child's father, the court may hold a best interest hearing and issue a custody and parenting time order consistent with the best interest of the child.
Although the law favors custody with a child's legal parents, at times a person other than a parent will gain custody rights. Those rights may be joint with one or both parents, or may be exclusive of the parents rights.
Sometimes a third party will gain standing to participate in child custody proceedings. Standing is the legal right to join the parents' custody case as a party. Such a right will depend upon both state law and the facts of the case, but absent the parents' consent it will normally be necessary for the third party to demonstrate that they have been acting in the role of a parent toward the child during the period of time leading up to the litigation.
Possible arguments for third party standing include:
Equitable Parenthood: A spouse who is married to the child's mother at the time of conception or birth, who forms a parent-child relationship with the child and wants to continue the relationship, may be able to be treated as the child's biological parent even if paternity is disproved;
In Loco Parentis: The non-parent has an established, parent-like relationship with the child;
If no parent-child or parent-like relationship exists, it is extremely difficult for a third party to gain standing in a custody case.
Although the exact requirements vary to some degree from state to state, in order to seek custody or visitation the third party must establish by clear and convincing evidence:
Parental Unfitness: The child's parents are unfit;
Harm to the Child: There is a substantial risk of harm to the child if the third party is not granted visitation or custody rights; and
Best Interest: It is in the best interest of the child that custody or visitation be awarded to the third party.
For example, a stepparent might assert standing as a third party custodian when their spouse passes away, and the child's surviving parent has been absent from the child's life for a period of years and is effectively a stranger to the child.
Some states have grandparent visitation laws that may permit a grandparent to seek a visitation order. However, such an order may not be granted if the child's parents are married, are fit parents, and oppose the grandparent's contact with their children.
Grandparents may gain the right to bring a visitation action if the parents divorce, or if one parent passes away, but must satisfy the requirements of proving an established relationship, with clear and convincing evidence that the child will be harmed if the relationship does not continue.
Other circumstances in which a third party may gain custody include:
Voluntary Guardianship: The child's parents voluntarily grant guardianship to the third party. Guardianship is awarded through a court.
Child Protective Proceedings: Due to issues in the child's home, such as abuse or neglect, the child is removed from the home and placed in the care of third parties. The third party may be an appropriate family friend or relative, foster care, or a group home.
Parents who are at risk of having their children removed from the home should consider voluntarily placing their children with an appropriate third party before legal action is taken, as that voluntary act will normally prevent the initiation of proceedings that could result in the children being made wards of the state, with placement outside of the family and with the possibility of termination of parental rights.