Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death.
[2] Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as parental responsibility, "residence" and "contact" (also known as "visitation", "conservatorship" or "parenting time" in the United States) have superseded the concepts of "custody" and "access" in some member nations.
[3] Legal custody involves the division of rights between the parents to make important life decisions relating to their minor children.
[10][13][14][15] Comparing 36 western countries in 2005/06, Thoroddur Bjarnason studied the proportion of 11-15-year-old children living in different child custody arrangements.
The percent of children living in intact families with both their mother and father were highest in North Macedonia (93%), Turkey (89%), Croatia (89%) and Italy (89%), while it was lowest in the United States (60%), Romania (60%), Estonia (66%) and Latvia (67%).
Jurisdiction normally arises from the presence of the children as legal residents of the nation or state where a custody case is filed.
Studies conducted by Wallerstein, Lewis and Blakeslee (2002) show that children from all age ranges indicate that equal or shared parenting is of their best interest 93 percent of the time.
[23] Several other studies were able to produce similar results, including Smart (2002), Fabricus and Hall (2003), Parkinson, and Cashmore and Single (2003).
For example, history of domestic violence found from either parent can most certainly trump the possibility of joint custody for a child.
He has further concluded that "joint custody is more likely to be optimal when divorce costs fall, so that children retain contact with both parents" and that "this may improve child welfare".
Women's rights activists are concerned about "family violence, recognizing primary caregiving, and inequities associated with awarding legal joint custody without a corresponding responsibility for child care involvement".
[28] Father's rights activists are more concerned about their "disenfranchisement from children’s lives, the importance of parent-child attachment, combating parental alienation, and access enforcement".
[29] Child poverty, lack of resources, and women's economic dependence on men all remain pressing issues that are not effectively noted during the custody trials.
Under that statute and case law, the governing principle in child custody determinations, whether to a parent or third party, is the welfare of the minor.
[37] Looking at the history of child custody demonstrates how the views of children and the relationship between husbands and wives have changed over time.
Maternal presumption was judicially developed through legislature such as the "Tender Years Doctrine" that presumed that children should be placed with their mothers in custody debates.
[39] By the early twentieth century, divorce cases became more common, and custody disputed simultaneously became an issue that affected many families.
With the changing attitudes of the Roaring 20's, a woman's sexual conduct no longer prevented her from receiving custody for her children.
The new rule according to Keezer on the Law of Marriage and Divorce stated that "Where the children are of tender years, other things being equal, the mother is preferred as their custodian, and this more especially in the case of female children, and this though she may have been guilty of delinquencies in the past but there is no evidence that she was delinquent at the time of determining the matter by the court.
"The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide", a New York court stated in 1973.
[39] It was at this time that the basis of the "best interest rule" was changed to address many aspects of the child's care in order to promote gender neutrality in decisions regarding custody.
[10] For example, U.S. 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.
[43] Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.