Child Custody Flashcards
Paternal Preference
originated in Roman times. under common law, children were property of the father.
Tender Years doctrine
mother presumed appropriate caretaker for boys <7 and all girls
Best Interest of the Child doctrine
Challenges parental sex preference as violation of Equal Protection. Abolishes Paternal Preference and Tender Years doctrines.
Painter v Bannister
Iowa Supreme Court, 1966. established “best interests standard.”
Mr. Painter’s wife killed in accident, and grandparents refused to return his son to him in CA. Grandparents were awarded custody due to his Bohemian lifestyle.
Uniform Marriage & Divorce Act, 1974
(ABA) 5 criteria to be considered in determining best interests of the child:
- wishes of parents
- wishes of child
- relationship of child with others
- child’s adjustment
- mental & physical health of all parties
Primary Caretaker doctrine
In some states, preference is given to the parent who performs the most caretaking duties.
No empirical evidence supports this approach after age 5.
Least Detrimental Alternative doctrine
Psychological Parent concept, developed by Goldstein, et al.
Grants sole custody to one parent, who determines visitation for other parent. Non-custodial parent has no legal rights.
Parental Preference model
examines pre-divorce parental roles, and judicial process tries to approximate the roles. e.g. same parent keeps picking kid up from school, if that’s what they did before. Concern regarding parent manipulating role prior to divorce.
types of custody
- physical
- legal
- joint (most common): shared legal custody & physical custody alternating on a schedule
- informal
- divided: each parent has child for a portion of the yr or on alternating yrs
- protective: court retains legal custody and assigns physical custody to someone else
- guardianship: transfer of physical and legal custody to someone other than parents; doesn’t necessarily involve termination of parental rights
- adoption: permanently severs all legal ties btw parent and child and creates a new parent-child relation
joint custody outcomes
success depends on parents
more father child visits
increased maternal satisfaction
faster maternal repartnering
fewer child adjustment problems
fewer psychosomatic symptoms
fewer psychological issues
mediation
mandated by many states if private agreement cannot be reached, prior to proceeding to litigation
standard of proof for custody litigation
preponderance of the evidence (civil proceeding)
Adams and Light (2015) study
analyzed 19,000 studies related to same sex parenting. no differences in child development found.
Farr (2017) study
measured adjustment of school age children in same-sex vs heterosexual families
adjustment was predicted by:
- earlier childhood adjustment issues
- parental stress
Troxel v Granville
parents separated, father lived with grandparents, father committed suicide, mother limited grandparents’ visitation, grandparents sued and were granted visitation by trial court.
USSC (2000) said Washington’s statute allowing “Any person to petition the court for visitation rights at any time when in the best interests of the child” was too broad and violated Due Process rights of mother to make family decisions.
Palmore v Sidoti
USSC 1984. White parents divorced, mother remarried Black man, Florida court granted father custody. USSC held that race should not be deciding factor in awarding custody.
Uniform Child Custody Jurisdiction Act, 1968
limits custody jurisdiction to child’s home state. attempt to prevent parent seeking different custody outcome in other states via kidnapping.
Parental Kidnapping Prevention Act, 1980
authorizes issuance of federal warrants for kidnappers
Hague Convention, 1980
treaty between countries to secure prompt return of child if taken to another country
Golan v Saada (USSC 2022): Golan fled DV in Italy with her child, refused to return. USSC held that court doesn’t have to examine all ameliorative measures before denying return of kid once the court has found that return would expose the kid to grave risk of harm.
International Child Abduction Remedies Act (ICARA), 1988
establishes procedures to facilitate prompt return of child to home country
parental alienation syndrome
coined by Dr. Richard Gardner, not in DSM. child becomes aligned with one parent and denigrates the other.
Wallerstein Study, 1980
“California Study.” followed 131 kids from 60 families. 40% were “clinically disturbed” at 5 yo. boys showed early effects, girls showed “sleeper effects”
Hetherington Study, 2002
tracked 1400 families and 2500 children. Vast majority functioning “reasonably well” within 2 years. 25% vs 10% with “serious” problems.
Golan v Saada
USSC 2022
A court is not required to examine all possible ameliorative measures before denying a Hague Convention petition for return of child to foreign country once the court has found that return would expose the child to a grace risk of harm.
