Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.
Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as "residence" and "contact" (known as "visitation" in the United States) have superseded the concepts of "custody" and "access". Instead of a parent having "custody" of or "access" to a child, a child is now said to "reside" or have "contact" with a parent. For a discussion of the new international nomenclature, see parental responsibility.
Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.
Family law proceedings which involve issues of residence and contact often generate the most acrimonious disputes. While many parents cooperate when it comes to sharing their children and resort to mediation to settle a dispute, not all do. For those that engage in litigation, there seem to be few limits. Court filings quickly fill with mutual accusations by one parent against the other, including sexual, physical, and emotional abuse, brain-washing, parental alienation syndrome, sabotage, and manipulation. It is these infrequent yet difficult custody battles that become public via the media and sometimes distort the public's perceptions so that the issues appear more prevalent than they are and the court's response appear inadequate.
Forum shopping to gain advantage occurs both between nations and where laws and practices differ between areas within a nation, The Hague Convention seeks to avoid this, also in the United States of America, the Uniform Child Custody Jurisdiction and Enforcement Act was adopted by all 50 states, family law courts were forced to defer jurisdiction to the home state.
In some places, courts and legal professionals are beginning to use the term parenting schedule instead of custody and visitation. The new terminology eliminates the distinction between custodial and noncustodial parents, and also attempts to build upon the so-called best interests of the children by crafting schedules that meet the developmental needs of the children. For example, younger children need shorter, more frequent time with parents, whereas older children and teenagers can tolerate and may demand less frequent shifts, but longer blocks of time with each parent.
Terminology
Sole custody is an arrangement whereby only one parent has physical and legal custody of a child.
Joint custody is an arrangement whereby both parents have legal custody and/or both parents have physical custody.
Physical Custody
Physical custody involves the day-to-day care of a child and establishes where a child will live. A parent with physical custody has the right to have his/her child live with him/her.
If a child lives with both parents, each parent shares "joint physical custody" and each parent is said to be a "custodial parent" . Thus, in joint physical custody, neither parent is said to be a "non-custodial parent" In joint physical custody, actual lodging and care of the child is shared according to a court-ordered custody schedule (also known as a "parenting plan" or "parenting schedule" ). In many cases, the term "visitation" is no longer used in this context, but rather is reserved to sole custody orders. Terms of art such as "primary custodial parent" and "primary residence" have no legal meaning other than for determining tax status, and both parents are still said to be "custodial parents".
In some states "joint physical custody" creates a presumption of "equal shared parenting". However in most states, joint physical custody only creates an obligation to provide each of the parents with "significant periods" of physical custody so as to assure the child of "frequent and continuing contact" with both parents. Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.
If a child lives with one parent, that parent has "sole physical custody" and is said to be the "custodial parent" whereas the other parent is said to be the "non-custodial parent" , but may have visitation rights or "visitation" with his/her child.
Joint Physical Custody
Joint physical custody is a court order whereby custody of a child is awarded to both parties. In joint custody both parents are "custodial parents" and neither parent is a non-custodial parents, or in other words the child has two custodial parents.
Many states recognize two forms of joint custody: joint physical custody, and joint legal custody. In joint legal custody, both parents share the ability to have access to educational, health, and other records, and have equal decision-making status where the welfare of the child is concerned.
In joint physical custody, which would include joint physical care, actual lodging and care of the child is shared according to a court-ordered custody schedule (also known as a "parenting plan" or "parenting schedule" ). In many cases, the term 'visitation' is no longer used in these circumstances, but rather is reserved to sole custody orders. In some states joint physical custody creates a presumption of equal shared parenting, however in most states, joint physical custody creates an obligation to provide each of the parents with "significant periods" of physical custody so as to assure the child of "frequent and continuing contact" with both parents. For example, states such as Alabama, California, and Texas do not necessarily require joint custody orders to result in substantially equal parenting time, whereas states such as Arizona, Georgia, and Louisiana do require joint custody orders to result in substantially equal parenting time where feasible. Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.
It is important to note that joint physical custody and joint legal custody are different aspects of custody, and determination is often made separately in many states' divorce courts. E.g., it is possible to have joint legal custody, but for one parent to have sole physical custody In some states this is referred to as Custodial Parent and Non-Custodial Parent.
Also, where there is joint physical custody, terms of art such as "primary custodial parent" and "primary residence" have no legal meaning other than for determining tax status, and both parents are still custodial parents.
Sole Physical Custody
Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. Physical custody involves the day-to-day care of a child and establishes where a child will live. A parent with physical custody has the right to have his/her child live with him/her. If a child lives with only one parent, that parent has "sole physical custody" and is said to be the "custodial parent" . The other parent is said to be the "non-custodial parent" , and may have visitation rights or "visitation" with his/her child.
Custodial Parents
A "custodial parent" is a parent who is given physical and/or legal custody of a child by court order.
A "child-custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. Where the child will live with both parents, joint physical custody is ordered , and both parent are custodial parents. Where the child will only live with one of the parents, sole physical custody is ordered , and the parent with which the child lives is the custodial parent, the other parent is the non-custodial parent.
Non-custodial Parents
A "non-custodial parent" is a parent who does not have physical and/or legal custody of his/her child by court order.
A "child-custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. Where the child will only live with one of the parents, sole physical custody is ordered , and the parent with which the child lives is the custodial parent, the other parent is the noncustodial parent. Note, however, where the child will live with both parents, joint physical custody is ordered , and both parent are custodial parents.
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