- Does custody always go to just one parent?
No. Courts frequently award at least some aspects of custody to both parents, called "joint custody." Joint custody usually takes at least one of these forms:
- Joint physical custody (children spend a relatively equal amount of time with each parent)
- Joint legal custody (medical, educational, religious and other decisions about the children are shared), or
- Both joint legal and joint physical custody.
In every state, courts are willing to order joint legal custody, but about half the states are reluctant to order joint physical custody unless both parents agree to it and they appear to be sufficiently able to communicate and cooperate with each other.
In Idaho, New Mexico and New Hampshire, courts are required to award joint custody except where the children's best interests--or a parent's health or safety--would be compromised. These 20 States expressly allow their courts to order joint custody even if one Parent objects to such an arrangement: AK, AZ, CA, CO, FL, IL, IN, IA, MA, MI, MN, MS, MO, MT, NE, NH, NJ, OH, OK and WI (South Dakotal and Utah also possibly fit within this group).
Sometimes neither parent can suitably assume custody of the children, perhaps because of a substance abuse or mental health problem. In these situations, others may assume temporary custody of the children under a court-ordered guardianship or foster care arrangement.
The court will normally favor the parent who will best maintain stability in the child's surroundings. There is no set standard as to what constitutes "stability," but a judge looks for continuity in a child's life. To the degree possible, a judge will try to maintain a child's school, community and religious ties.
A court gives the "best interests" of the child the highest priority. What the best interests of the child are in a given situation depends upon many factors, including:
- The child's age, gender, mental and physical health.
- Mental and physical health of parents.
- Lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse.
- The love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance.
- The parent's ability to provide the child with food, shelter, clothing and medical care.
- The child's established living pattern (school, home, community, religious institution).
- The quality of school which is particularly important if one parent wishes to move a child out of the area.
- The child's preference, if the child is above a certain age (usually about 12).
- The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
In a few states, including Alaska, California, District of Columbia, New Mexico and Pennsylvania, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child.
As a practical matter, however, lesbian and gay parents--even in those states--may be denied custody or visitation. This is because Judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the Lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.
The U.S. Supreme Court has ruled it unconstitutional for a court to consider race when a non-custodial parent petitions for a change of custody. In one case, a white couple had divorced, and the mother had been awarded custody of their son. She remarried an African American man and moved to a predominantly African American neighborhood. The father filed a request for modification of custody based on the changed circumstance that the boy was now living with an African American man in an African American neighborhood. A Florida court granted the modification. The U.S. supreme Court reversed, ruling that societal stigma, especially a racial one, cannot be the basis for a custody decision. Palmore v. Sidoti, 466 U.S. 429 (1984).
In the past, most states provided that custody of children of "tender Years" (about five and under), had to be awarded to the mother when parents divorced. This rule has been rejected in most states, or relegated to the role of tie-breaker if two fit parents request custody of their pre-school children. Only South Carolina and Tennessee continue to carry the tender years doctrine in their statutes. Most states require their courts to determine custody on the basis of what's in the children's best interests without regard to the age of the child. And Equal or shared parenting is becoming more common as more father's exert their rights to custody of their children.