Child Custody Laws-Child Custody Laws In The United States In Plain English
Child custody laws in the United States vary from state to state but fundamentally are governed by one piece of legislation which has been adopted by forty eight of the states in the United States called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Jurisdiction for child custody litigation?
One of the most important features of the Uniform Child Custody Jurisdiction and Enforcement Act is that it gives jurisdiction for any child custody litigation that is initiated and it basically affords jurisdiction to the home state of the child. The home state of the child is defined as the state in which the child has lived for the six months prior to the institution of the child custody legal proceedings.
If the child has lived for less than six months in any one state then the state where the child has a “significant connection” and where the state has evidence concerning the child’s care and protection can assume jurisdiction.
If the child has a significant connection with more than one state then it is up to the two states concerned to decide which of them will hear the custody proceedings.
The Uniform Child Custody Jurisdiction and Enforcement Act replaces a previous uniform act “Uniform Child Custody Jurisdiction Act” as the latter was inconsistent with the Parental Kidnapping Prevention Act in relation to determining jurisdiction for initial custody determinations.
Generally once a state has assumed jurisdiction of the child custody case withing the guidelines outlined above by the Uniform Child Custody Jurisdiction and Enforcement Act and has made an initial custody determination then that state will maintain jurisdiction of the case.
However where a state does not have jurisdiction but is concerned about the child’s health and safety it can make a temporary emergency order until the parents go back to the original state having jurisdiction to have it make a decision as to custody.
Types of Child Custody
There are essentially four types of child custody which can be ordered by the Family law court:
1. Legal Custody
Legal custody describes the situation where you have the right to be involved in all decisions concerning the child regarding the child’s welfare, education, health, schooling, religion, medical care etc. Legal custody should be seen as a global right concerning the child and not necessarily being involved in the smaller day to day details concerning the child.
2. Physical Custody
Physical custody is the right and obligation to take care of the child on a day to day basis and have the child live with the parent who is granted physical custody. Some states will award joint physical custody which will involve the child being shared between parents as to living arrangements. Clearly this works best where the parents live close to each other because the courts must always be mindful of the best interest’s of the child.
3. Sole Custody
Sole custody describes the situation where the parent has either sole physical custody or sole legal custody or both. Sole custody is not very common as the courts see the importance of both parents being involved in the child’s life; however a court will award sole custody if one of the parents has problems with drug/alcohol abuse or are otherwise incapable of playing a role in the child’s life.
4. Joint Custody
Joint custody describes the situation where the parents share either physical or legal custody or both. This can occur if the parents work out a schedule in relation to visitation, accommodation and other issues in the child’s life. If the parents cannot work out or agree on a schedule then ultimately the family law court will impose a determination on them and do so in the best interests of the child.
Joint custody can take one of three forms:
a) Joint legal and physical custody
b) Joint physical custody
c) Joint legal custody.
Joint custody is recognized as having significant benefits for the child insofar as the child still enjoys the involvement of both parents in his/her life. However there is also the downside of trying to maintain two homes, shuttling the child around to accommodate both parents rights to share physical custody and the potential for ongoing conflict between parents at swap overs and because they are still meeting regularly. This is potentially very detrimental to the child.
