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Adrea D. Theodore
CHILD CUSTODY AND SUPPORT
Child custody refers to the legal and physical rights
and responsibilities parents have with respect to their
child. Legal child custody refers to the right to make
all major decisions regarding the child’s health, wel-
fare, education, and religious training. Physical custo-
dy is the right to the daily care and control of the
child. The parents’ marital status in relation to each
other has no bearing on the determination of custody.
There are different types of child custody that con-
note various combinations of legal and physical
rights.
Sole legal custody gives one parent the right to
legal custody, independent of the other parent. This
parent is called the ‘‘custodial’’ parent and the other
parent is referred to as the ‘‘noncustodial’’ parent.
Noncustodial parents typically have visitation rights,
including overnight visits and vacations.
Sole physical custody grants exclusive physical
custody to one parent. Granting one parent both sole
legal and physical custody is typically done only when
the other parent has neglected or abused the child.
Joint legal custody grants legal custody rights to
both parents equally. This means that each parent
needs to inform and achieve agreement with the
other parent before making major decisions for the
child.
Joint physical custody grants physical custody
rights to both parents, although the actual amount of
time each parent spends with the child may not be
equal. Parents with joint physical custody usually have
a parenting plan that specifies the actual times the
child will spend with each parent.
Split custody refers to ‘‘splitting’’ siblings between
parents and may entail any combination of physical
and legal custody.
If parents cannot agree on a custody arrange-
ment, the court will impose an arrangement that is
based on the ‘‘child’s best interests.’’Historical Overview of Custody Law
What constitutes the ‘‘child’s best interests’’ has
been marked by great ideological shifts. Until the
mid-nineteenth century, fathers were unequivocally
favored in custody decisions and mothers had virtual-
ly no rights. Under English law, upon which U.S. law
is based, children and their mothers were viewed as
a man’s property or ‘‘chattel.’’ Over the next hundred
years, psychologists increasingly emphasized that
mothers were biologically predisposed to be the bet-
ter parent because they were more nurturing. The
role of the father was viewed as an indirect one, as the
provider for the mother-child relationship. As a re-
sult, the allocation of custody shifted from a complete
right of fathers to a sweeping preference for mothers.
This maternal preference was fortified by the ‘‘tender
years doctrine,’’ which held that children of tender
years should be raised by their mothers.
In the 1970s and 1980s, significant changes oc-
curred. The courts moved away from the presump-
tion that mothers are always the best parents and
discarded the tender years doctrine because it was
based solely on gender and was therefore unconstitu-
tional. Perhaps the most prominent change was the
shift to a preference for joint custody, a shift based on
the presumption that it is important for children to
have a continuing relationship with both parents.
States differ in the extent to which they endorse
joint custody. Some express a presumption in favor
of joint custody. Under the Uniform Child Custody
Jurisdiction Act, judges are required to give ‘‘full faith
and credit’’ to custody orders issued in other states
and to enforce these decrees.CHILD CUSTODY AND SUPPORT 81