1. Unit 3 – Custody Determinations Prof. Paul Courtright

2. Unit 3 – Custody Determinations For this week’s Seminar, we will explore the determination of custody over dependents in several legal contexts. We will explore the "best interests of the child" standard used by courts in making custody determinations. We will also identify the different types of custody arrangements and explore when each type is appropriate, clarify the rights and responsibilities of unmarried parents regarding their children, and delineate the rights of third parties -- such a grandparents -- in custody cases.

3. What is the “best interest of the child” standard? Prior to the 1970’s – The tender years doctrine: The tender years doctrine was based on the assumption that young children needed to be and were better off being cared for by their mothers than by anyone else. Fathers were not viewed as being equipped to deal with the care of infants and young children. Children of tender years included children ages twelve and under. However, custody of children between age twelve and the age of majority was also almost always awarded to their mothers. Occasionally, custody of an older son might be awarded to his father, either because the mother could not control the child, the son wished to live with the father, or the mother and father agreed that the father would have custody of the older child.

4. What is the “best interest of the child” standard? The practice of routinely granting custody to the mother continued until the early 1970s, a decade that witnessed a great increase in the incidence of awarding custody to the father and also heralded the advent of joint custody and split custody as alternatives to sole custody by either parent.

5. What is the “best interest of the child” standard? The best interest of the child standard: The “best interest” standard opened the contest for custody not only to fathers but to other potential caregivers when the child’s well-being or interests could be best served by such a custody determination. Post 1970: the best interest of the child had become a very significant factor that most jurisdictions considered. This trend continued. By the 1990s, virtually all jurisdictions had abandoned the blanket or automatic tender years presumption of maternal custody in favor of identifying what determination would promote the child’s best interests. The application of the best interest standard not only determined who would have custody but also whether custody would be sole custody, shared custody, or split custody.

6. Factors considered in determining parental custody. 1. The wishes of the child’s parent or parents as to custody. 2. The wishes of the child as to the custodian. 3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest. 4. The child’s adjustment to home, school and community. 5. The mental and physical health of all individuals involved. 6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent. 7. If one parent, both parents, or neither parent has provided primary care of the child. 8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody. What other considerations exist?

7. Types of custody arrangements Sole custody: where one parent has both legal and physical custody over the dependent child, and the other parent has limited access to the child.

8. Types of custody arrangements Joint legal custody: Parents having joint custody are jointly or equally responsible for the financial, emotional, educational, and health-related needs of their children. They have an equal responsibility and an equal degree of say in deciding how to meet the various needs of their children’s health, education, and welfare. Joint custody will only be successful if the parents can communicate effectively with each other and put aside personal feelings toward each other when dealing with issues relating to the children, be flexible enough to compromise when each party has a different view on how to handle some aspect of the child’s upbringing, and be able to negotiate to arrive at an adequate solution when conflicts arise.

9. Types of custody arrangements Joint physical custody with sole physical custody in one parent: Under this arrangement, both parents share legal custody of the children. Both parents have equal say in making decisions regarding the child’s upbringing; however, one parent has exclusive physical custody of the child. The child permanently resides with one parent, the custodial parent, and has but one legal and actual residence for purposes of attending school, etc. The child may visit the other parent, the noncustodial parent, frequently and may stay for long periods of visitation such as summer or holidays and school vacation. Nevertheless, the child’s primary residence is with the custodial parent. If the parent with whom the child primarily resides has expenses for the child’s daily needs, the joint but noncustodial parent will be ordered to pay child support to the custodial parent to be used for the physical maintenance of the child.

10. Types of custody arrangements Joint custody with shared physical custody: This arrangement succeeds most often when each parent resides geographically close to each other and close to the child’s school, church, doctor, and site of the child’s recreational activities. Under shared physical custody arrangements, the child resides with one parent a certain number of days a week and a certain number days with the other parent. The child has a dual residence. Usually neither parent pays the other parent child support because both parents share expenses. If one parent is financially more able than the other parent to provide for the child, the more affluent parent gives the less financially able parent money to cover the child’s needs while the child is physically in the other’s custody.

11. Types of custody arrangements Split custody: Under the practice of split custody, one parent has sole custody of the child for a part of the calendar year, each year, and the other parent has sole custody for the remaining portion of the year. Sometimes under a split custody arrangement, the split will be equal; each parent will have custody of the child for six months. During that time period, the parent will have sole custody of the child and complete physical custody of the child.

12. Types of custody arrangements Sometimes split custody means that one parent has sole custody and physical custody of the child during the school year and the other parent has sole and physical custody of the child for the summer months. Each parent has full authority to make decisions regarding the child’s health, education, discipline, recreation, and welfare. This arrangement differs from joint custody with shared physical custody in that parents with joint custody with shared physical custody must consult the other custodial parent regarding at least major decisions regarding health, education, and welfare. Under a split custodial arrangement, the parent enjoying their physical custody time could have the child undergo elective surgery without the legal consent of the other parent.

13. Types of custody arrangements Split custody was actually a compromise. For decades, courts entered orders for a split custodial arrangement in instances either where both parents requested it or where the court felt that such a “Solomon” type of disposition was the fairest under the circumstances. The arrangement occurred mainly when parents lived in different parts of the country or in different countries.

14. Types of custody arrangements Another type of split custody arrangement may involve the splitting of siblings. One parent would be awarded custody of one or more children, and the other parent would have custody of the others. Courts generally frown on splitting up siblings. Keeping brothers and sisters together provides the children with some level of stability at a time when the breakup of their parents is traumatic for them to handle. There are some instances, however, where splitting the siblings may actually be in the best interest of the children, as one parent may be better able to control, discipline, or care for a particular child.

15. Types of custody arrangements Split custody can be very disruptive and undermine the child’s need for continuity and stability in his or her relationships and environment. Consequently, split custody is used very little today. Today, most, if not all, courts apply the “best interest of the child” standard to decisions regarding custody, and the current prevailing view is that split custody is detrimental to a child’s best interest.

16. O.J. Simpson custody case Synopsis: O.J. Simpson petitioned the Superior Court to terminate the guardianship that Nicole Brown Simpson's parents (Lou and Juditha Brown, the maternal grandparents) had over children Sydney and Justin while Simpson was in prison pending the murder trial. The Superior Court granted Simpson's petition, terminated the guardianship, and granted visitation rights to Lou and Juditha Brown.

17. O.J. Simpson custody case In 1998, the California Appeals Court overturned this Superior Court ruling, saying that the Superior Court had not considered evidence from the civil wrongful death claim against Simpson. (This Appeals Court opinion is in the text on pages 159-160.) However, instead of going back for a whole new trial, the parties agreed that Simpson would have physical custody of the children and the Browns would have legal guardianship over the children as well as visitation rights.

18. O.J. Simpson custody case Do you agree with the Superior Court's opinion or the Appeals Court's opinion in the O.J. Simpson custody case? How would you have decided the case if you had been the judge -- would you have terminated the Brown's guardianship and given custody to O.J.? Why or why not?

19. Virtual visitation - advantages Discuss the advantages of virtual visitation. Simple and effective to use video conferencing Effective when visitation is restricted because of distance and financial constraints Helpful in contentious divorces Virtual parent time is designed to supplement, not replace, in-person parent time.

20. Virtual visitation - disadvantages Discuss the disadvantages of virtual visitation. Permits mothers to move their children hundreds or thousands of miles away from their fathers and justifying the separation by ordering Internet video conferencing as a purported substitute for a father's time with his children. Loss of physical and emotional connection with the child.

21. Troxel v. Granville: grandparent visitation rights What did the U.S. Supreme Court hold in Troxel v. Granville regarding grandparent visitation rights? What visitation rights do grandparents have in your state, according to statutory and case law?

22. Unit 3 Summary Divorce brings a host of problems that come from the determination of custody of children. Depending on a number of factors in determining what is in the child’s best interests, the form of custody may be one of several types of custody.

23. Unit 3 Conclusion Questions on Unit 3 material? Remember to complete all Unit 3 work: Assignment paper Discussion (See Discussion Board Posting Requirements) Quiz Next Seminar on Unit 3 re: Custody Determinations Discussion Seminar Project Quiz Have a great week!