Child Custody free essay sample

Every couple enters a relationship with the romantic dream of getting married, starting a family, and living happily ever after. Truth is it may sound all good and well however not all relationships and marriages go the distance. According to the American Psychological Association, 40 to 50 percent of marriages in the United States end in divorce (2014). After the divorce process comes the real complicated part, the child custody process. When a family separates and begins living in different households agreements have to be made regarding the welfare of the children. Child custody has evolved greatly over the years and no longer favors one parent over the other. Assuming society was to once again adopt the customs of ancient times there would be no need for custody hearings because the fathers were responsible for the children. The term used was Patria Potesta which granted the man of the house automatic power over the family. We will write a custom essay sample on Child Custody or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page Patria Potesta was mainly based on the fact that families worked the land they also lived on so the fathers were able to supervise the family while working. Things would change dramatically following the industrial revolution. Men no longer worked their own land instead they now worked in factories in nearby cities. This shifted the balance of child custody because now mothers were the primary keeper of the household. â€Å"With the mothers dominant at home and responsible for meeting the children’s needs throughout the day the view point developed that a mother’s continuing presence was indispensable for the physical and emotional well-being of the minor children†. (Luppino, 2012) In the years to follow the balance would once again shift this time to a mutual benefit. Women were now given better job opportunities so they worked outside of the home and quickly became bread winners of the house. So now the concept of the mother being indispensable because of her dominant presence at home was no longer a valid argument for most working women. With men and women now both being financial supporters of their households child custody decision had to be made based on what was best for the child not just who was around the house more. To determine child custody courts applied the Tender Years Doctrine which was later renamed to Best Interest of the child. The courts needed some kind of structure to base the best placement for the children. In some cases it can be easy to determine where the children should reside because the parents are on mutual agreeing terms and then the official judgment is made. When the parents are not on agreeing terms the courts have to step in and make the decisions for them using the best interest of the child doctrine: ARIZONA REVISED STATUTES ANNOTATED (WEST) 25. 403. Custody; Best Interest of Child. . . . A. The court shall determine custody, either originally or upon petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including: 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. 9. Whether a parent has complied with Chapter 3 article 5 of this title. (p. 200-201) Keep in mind that though all states share the same overall concern for the children, each state has their own set of child custody rules. When dealing with so many different states it would only make sense to devise a system to oversee and govern state court decisions. That is where the Uniform Child Custody Jurisdiction and Enforcement Act come in to play. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a Uniform Act written by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA governs state courts’ jurisdiction to create and modify â€Å"child-custody determinations,† a term that expressly includes custody and visitation orders. † This requires state courts to enforce valid child-custody and visitation determinations created by sister state courts. It additionally establishes innovative interstate enforcement procedures. (Kidnapping, 2002) The UCCJEA applies to a variety of proceedings during which custody or visitation is at issue; Consent to temporary enforcement of visitation determinations; Consent to courts to exercise emergency jurisdiction in cases involving family abuse and limits the relief offered in emergency cases to temporary custody orders; Set up a registration procedure for out of State custody determinations. Also it establishes a procedure for quick interstate enforcement of custody and visitation determinations. The UCCJEA replaced the â€Å"Uniform Child Custody Jurisdiction Act†, as a result of the recent act was inconsistent with the federal Parental Kidnapping Prevention Act. The UCCJEA corrects these issues. The UCCJEA additionally, conjointly uniform procedures to register and enforce child-custody orders across state lines. (Kidnapping, 2002) The UCCJEA needs State courts to acknowledge and enforce custody determinations created by foreign courts underneath factual circumstances that well adjust with the UCCJEA’s territorial standards. A state court does not have to enforce an overseas judicial writ if the child-custody law of the foreign country violates basic principles of human rights. The UCCJEA is a uniform state law concerning jurisdiction in child custody cases. It specifies which court ought to decide a custody case, not however the court should decide the case. The UCCJEA sets forth four bases for jurisdiction: home state, important connection, a lot of acceptable forum and no alternative state jurisdiction. The UCCJEA prioritizes home state jurisdiction, and, except in emergencies, a court might not exercise jurisdiction if a proceeding is pending elsewhere in keeping with the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act, 2003). â€Å"Home state: the home state is that the state wherever the child lived with a parent or someone acting as a parent for a minimum of six months directly before the custody action was filed. Home state jurisdiction exists within the child’s current home state or in a state that was the child’s home state at intervals six months before the case began. † â€Å"Significant connection: is when a state has important connection jurisdiction if the child and at least one parent have a major connection with the state. There should be substantial proof within the state regarding the child’s care, protection, training, and personal relationships. â€Å"More appropriate forum: this kind of jurisdiction exists once each the home state and also the important association jurisdiction have declined to exercise jurisdiction on the grounds that a court of another state is that the more appropriate forum. † â€Å"No Other State Jurisdiction: this kind of jurisdiction exists once no court of any other state would have home state, important connection or additional acceptable forum jurisdiction. † â€Å"Emergency: A court could exercise emergency jurisdiction if the child is present within the state and also the child has been abandoned or its necessary in an emergency to safeguard the child as a result of the child or a family member of the child is subjected to and/or threatened with neglect or abuse. Emergency jurisdiction is temporary, however under certain circumstances, such orders will be final. † The UCCJEA urges courts in other jurisdictions to communicate once one court exercises emergency jurisdiction so as to resolve the emergency, the protection of the child, and confirm the length of the temporary order. Generally, the parties should have a chance to be heard before a jurisdictional decision is formed, and also the courts should create a record of the communication. Judicial communications are often crucial to victim safety in domestic violence cases as a result of it ensures that a court isnt receiving info solely from the offender (Uniform Child Custody Jurisdiction and Enforcement Act, 2003). Parental custody hearings are not just black and white; meaning one parent wins and the other parents loses. There are different types of parental custody such as Sole custody, joint custody, joint legal and physical custody or split custody. When a parent wins sole custody of their child/children they are responsible for making all decisions. The other parent may not have contact with the child unless given permission by the courts or guardian with sole custody. Joint custody means that both parents are responsible for making decisions for their child/children. Being responsible for a child or children means financially, emotionally, health, and educational needs. With joint custody both parents have to agree on how and where the child is to be raised. If one parent decides to move the child out of the state he or she must first consult the other parent when having joint custody. Joint custody can only be granted if both parents are on good standing and have great communication with each other. Although joint custody means both parents are equally responsible for the children one parent will still be the custodial parent. The children will live with the custodial parent and the non-custodial parent will have to pay child support. Joint legal and physical custody also gives both mother and father equal responsibility to make decisions for the children. What makes joint legal and physical custody different from joint custody is there will be no custodial parent. The children with live with both parents switching houses throughout the week. In most cases joint legal and physical custody does not require a single parent to pay child support because both parents are housing the children. This kind of custody arrangement can only work if both the mother and father live near each other. That way the children will be able to maintain their normal routine of going to school, doctor, friends or anything else the child would normally do. Split custody also gives both parents rights over the child; however it is a bit different than joint custody. Each parent will have the child at a different point of the year. For instance the mother will have custody from January to July and the father will have custody the rest of the year. When the parent has the child during their designated time they have sole custody and make all the decisions during that time. Parents who are not awarded custody still can seek visitation rights assuming they meet the criteria. In some cases neither the father nor the mother will be awarded custody of the children. Sometimes a third party such as a grandmother, grandfather, stepparents, former stepparents, or blood relatives can be awarded custody. The following case Bailes v. Sours is an example: â€Å"Bailes v. Sours, 231 Va. 96, 340 S. E. 2d 824 (1986) In Bailes, the Virginia Supreme Court established the parental presumption standard. The child was born in May 1972, the parents separated in June 1973, and the child lived with his father. In February 1974, the trial court awarded custody to the father and the mother was granted reasonable visitation rights. In October 1975, the father remarried and the boy lived with his father and stepmother until his father’s death in 1983. The boy thereafter resided with his stepmother. The mother would visit her son but he expressed reservations, and she said that she would not force the visits on him. He also experienced bedwetting and psychological problems in connection with the visits. The mother visited her son only eight or ten times in a nine-year period. In the meantime, the boy continued to have a close and loving relationship with his stepmother. The mother sought custody. The trial court found both women to be fit and proper persons to have custody. The mother asked for the parental presumption. The trial court found the presumption rebutted by clear, cogent and convincing evidence that the best interests of the boy demanded that he remain in the stepmother’s custody. The Virginia Supreme Court agreed. Although the presumption favoring a parent over a nonparent is a strong one, it is rebutted when certain factors are established by clear and convincing evidence. These factors are (1) parental unfitness, (2) a previous order of divestiture, (3) voluntary relinquishment, (4) abandonment, and (5) special facts and circumstances constituting an extraordinary reason for taking a child from its parent. Here the presence of extraordinary circumstances rebutted the presumption. The mother was virtually a stranger to her son. The boy had known no other home than with the stepmother. The boy, twelve years old at the time of trial, expressed a strong desire to stay with the stepmother. The psychologist concluded that to transfer the boy’s custody would have a significant, harmful, long-term impact on him† (Raynor, 2011) The fact that the child showed physical signs of distress by wetting the bed proved it would not be in his best interest to live with the mother. The stepmother has a legitimate interest in the child and the child feels more comfortable with her, this making the stepmother the best custodial guardian. A parent has the right to appeal decision made by the courts if they feel an unfair judgment was delivered. This was the case in Ferris v Underwood: Ferris v. Underwood, 3 Va. App. 25, 348 S. E. 2d 18 (1986). In Ferris, the parents were married in March 1979 and a daughter was born in March 1981. In March 1982, the mother and child left the marital home. In January 1983, custody was granted to the paternal grandmother. The court order cited the youthfulness of the parents as a reason to grant custody to the grandmother, and provided that â€Å"neither parent has waived, abandoned, or in any other manner relinquished the relationship of the natural child to its natural parent. † The parents were divorced in 1985. The mother remarried and petitioned for custody, which was granted. The grandmother appealed. The grandmother, in her brief, contended that the issue was whether the best interests of the child would be served by the transfer of custody to the mother. She maintained that the trial court applied the wrong test in reaching its determination of the best interests of the child. The Virginia Court of Appeals disagreed and affirmed the trial court ruling. It noted that the Virginia Supreme Court has recognized that the law presumes that the childs best interests (Raynor, 2011) This brings us to visitation and how schedules are made for the non-custodial parents. There are two types of visitation reasonable and fixed. Reasonable visitation means that both parents were able to agree to set dates and times for visitation. This gives the parents a chance to make a convenient visitation schedule. Those who cannot come to a mutual schedule understanding will have the courts intervene and set up the times and dates for the visit. No parent will be allowed visitation if the courts feel the child’s health will be at risk. After being awarded visitation it may be supervised or unsupervised. Unsupervised and supervised visitations are pretty much self-explained. If you are granted unsupervised visitation you may do as you please with your child assuming it is child appropriate. Supervised visitation on the other hand requires a person be present when the non-custodial parent was having visitation. Parents who are granted supervised visitation often have a negative reputation with law enforcement, alcohol abuse, drug abuse, or mental health. It is no secret that child custody disputes can be very stressful and time consuming and so it should be. This decision will determine the welfare of children and must take every detail into consideration. Conclusion: When trying to figure out what is best for the child, the parents need to come together and stop arguing over who is the better parent. Having joint custody with each parent having the same amount of time with the child is what is best as long each parent can provide and maintain a safe and happy home. Parents have to understand that each of them is divorcing one another and not divorcing the child. It will not be easy on the child at first and each parent must understand what the child is going through and not just worry about themselves. The child must come first and the parents have got to leave their hatred for each other outside and not display their anger towards one another. Sometimes it’s sad when the child acts more grown up than the parents. Keep it civil, no bad talking about each other to the child or in front of the child.