At one time, custody of children was almost exclusively given to the mother. Today, custody determination is made based on a variety of factors that help to determine what is in the best interest of the child. In many cases, the parents work out an agreement between themselves. In cases that are disputed, however, it falls to the court system to make the decision.
Types of Custody
In a sole custody decision, one parent is given both physical and legal custody of the child. The other parent may be given visitation rights and obligated to pay child support, but that parent is not able to make legally binding decisions about the child’s upbringing. In the case of unmarried parents, sole custody is often given to the mother unless the father can prove that he would be a better parent.
Joint legal custody is perhaps the most common arrangement. One parent receives primary physical custody of the child, although the other parent normally receives liberal visitation. Both parents are expected to work together to make decisions about the child’s education, medical care and other important parts of the child’s life. In order for joint legal custody to be given, the court must be satisfied that the parents are capable of working together.
Joint physical custody is a less attractive option to most courts, although it may be permitted if the parents settle on an agreement that works. In this case, the child lives with the two parents, perhaps alternating weeks. Some families place the child with one parent during the school year and the other during summer vacations. This type of agreement prevents the child from losing continuity with either parent, but may make the child feel constantly shuffled around.
Split custody is rarely granted today. In this arrangement, the children are divided, some living with one parent and some with the other. Courts are reluctant to divide siblings, however, and look for alternatives where possible.
Who Gets Custody?
In a best case scenario, the parents are able to work out custody arrangements on their own, which are generally approved, if reasonable. However, in the case of disputes, the court must make a decision that is in the child’s best interest. Several tests may be applied, including the relative health of the parents; the child’s interactions with others in the home; opportunities for interaction with extended family members; the child’s preferences; and stability of home environment.
Some courts prefer to award custody to the parent who has been the child’s primary caretaker. The primary caretaker is the more “hands on” parent, as evidenced by meal preparation, bathing and dressing, teaching and fostering activities. Although at one time the primary caretaker was almost always the mother, today either parent may qualify under this test.
Custody and Child Support
Custody and child support obligations are seen as distinct and separate from one another. Both parents have the responsibility to support their child financially, and courts generally frown on custody agreements that are designed to minimize child support payments. If the noncustodial parent wants to gain custody or change the visitation agreement, he or she must pursue that issue in court while continuing to make child support payments. Breaching either agreement generally does not nullify the other agreement, although the breach may be considered as part of a larger court hearing.