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Child in most countries, terms such as "custody" and "access" (known as "visitation" in the United States) have been superseded by the concepts of "residence" and "contact". 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 standards, see parental responsibility.
Residence and contact issues typically arise in proceedings involving 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, but only after the proper fundamental right afforded to biological parent's has been disproven or shown to be inaccurate. In Troxel v. Granville(2000), the U.S. Supreme Court affirmed that a biological parent holds a fundamental right in choosing how to raise one's children as they see fit. Later in the case of In re O'Donnell-Lamont(2004), the court affirmed an Oregon statute requiring a presumption the parent acts in the child's best interests to be met prior to applying the best interests of the child standard, placing both parties on equal footing. Likewise, the court upheld the requirement set forth mandating a child-parent relationship or long-term personal relationship existed between the child and non-blood related intervenor under the concept of the fundamental right of the parent. The court noted that the issue in itself allowed for an intervener with a legitimate purpose to come forth, and through the statute's requirement of first showing the relationship, second showing the rebuttal of the presumption, and finally judging the choice on the best interest of the child standard, the fundamental right of the parent was being given proper Due Process Requirements under the 14th Amendment Due Process Clause.
Family law proceedings which involve issues of residence and contact often generate the most acrimonious disputes. It is not uncommon for one parent to accuse the other of trying to "turn" the child(ren) against him or her, allege some form of emotional, physical, or even sexual abuse by the other parent, or for the "residence" parent to disrupt the other parent's contact or communication with the child(ren). Cases of parents removing children from the jurisdiction in violation of court orders, so as to frustrate the other parent's contact with the children, are not unusual.
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, littler 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.
The law in the United States
Full article ▸