by Nancy Zalusky Berg, Esq.
What does it mean to have custody
of a child? Is it different from the legal relationship and, more importantly,
the emotional relationship one has with a child in an intact marriage?
Does the divorce decree expand or lessen the rights and responsibilities
that parents had to their children prior to the divorce? Many of these
questions are ill defined and poorly addressed by law.
Historically, children were defined
as property and divided according to property laws. For example: "By
the laws of England, the custody of all legitimate children from the
hour of their birth belongs to the father. If circumstances, however
urgent, should drive the mother from his roof, not only may she be prevented
from tending upon the children in the extremity of sickness, but she
may be denied the sight of them; and if she should obtain possession
of them by whatever means [she] may be compelled by the Writ of Habeas
Corpus to resign them to her husband or his agents without condition
without hope."
So began Sergeant Talfourd's argument
for the British Infants Custody Act, Hansard's Parliamentary Debates,
Volume 39 (1837). This act became law in 1839. By the beginning of the
20th century, the American mother enjoyed the right to custody in only
nine states and the District of Columbia, and only if a state judge
found her morally and economically worthy of motherhood. Thereafter,
the "tender years" doctrine (which held that children belonged
in the custody of their mother) dominated until the advent of the so-called
gender neutral approach, with which we currently struggle. The "tender
years" doctrine simply switched the gender preference in many cases
without regard to the psychological attachment the child might have
to one or both parents.
Present Day Law
Minnesota statutes have established
a bifurcated approach to the notion of custody. It is imperative for
any parent going through a marriage dissolution proceeding to understand
that there are two elements to the determination of custody. Legal custody
refers to the right to determine a child's upbringing including education,
health care, and religious training all of which involve making major
decisions that affect a child's life. Uniformly, the practice and the
directive of our statutory system is that there be an award of joint
legal custody unless the parents are so incapable of working together
that such an award would cause harm to the child. For example, there
is a refutable presumption that a joint award is not in the best interests
of the child if there is a history of domestic abuse in the family.
Our statutory system directs the
courts to determine a custodial award, whether it is physical or legal,
based on the best interests of the child. The best interest determination
by the trial court is guided by 13 elements that are prescribed by statute
(see "Factors Guiding Custody Decisions"). The statutory system
prohibits the court from applying one factor to the exclusion of all
others. Each of these factors has been litigated and further defined
by case law. The interpretation of these factors is the substance of
a custody dispute.
The best interest determination was
eloquently described to me by a judicial officer who indicated that
the needs, interests, and desires of the parents were of no relevance
in the custody determination. Rather, determination of custody was based
exclusively on the child's needs and on those factors that would enhance
the child's best interests. Parents frequently forget this simple fact.
Unfortunately, most parents involved in contested custody proceedings
focus on their own needs rather than on the needs of their children.
The second assertion of a custody
award is the physical custody of the child, which means, by definition,
the routine daily care and control and residence of the child. As is
true with joint-legal custody, joint physical custody means that the
routine daily care, control, and residence of the child is structured
between the parties.
Frequently, the distinction between
joint legal and joint physical custody becomes blurred during a divorce.
The word "joint" becomes a volatile button to be pushed by
either party since it relates to the notion that they must continue
cooperate and advocate control over one or more aspects of the child's
care. Ironically, it is during a divorce -- at a time when the level
of trust and respect is at an all time low -- that a parent must attempt
to fairly evaluate their child's needs and hope that their estranged
spouse will do the same.
The court's determination of a custodial
decision is based upon the judge's discretion. It is within the sole
discretion of a court to interpret and analyze the testimony and information
received. A judge will evaluate the credibility and liability of the
testimony he or she hears from the parents and from any expert who testifies.
Very often, a custodial dispute will come down to a battle of experts
and to which parent is more believable.
Custody "Experts"
Who is an expert? Is it any individual
who has special and particular knowledge about children and their needs?
In most instances a child psychologist tries to evaluate the situation
and makes recommendations to the court as to the proper custodial arrangement.
Specifically, the child psychologist will make a custody recommendation
by evaluating the best interest standards described previously. However,
unlike a judge, the child psychologist will apply all of his or her
experience and education to answer the question, "What is in the
best interests of the child concerning custody?" Usually, the psychologist
or psychological evaluator, as they are often called, will have one
or more sessions with the estranged parents. Depending upon the age
of the child, sometimes they'll meet with extended family members or
contact other professionals, such as teachers, who are involved in the
child's life. Based upon their interviews, notes, and sessions with
the parents, they will then make a report detailing their findings.
The report contains a summary and provides a recommendation as to what
the psychologist believes is the best custodial arrangement for the
child or children.
Any professional involved in the
very difficult process of a psychological evaluation will tell you that
their recommendations are often made with a wish and a prayer. The tests
conducted are fallible and the process of the evaluation itself, given
limited contact with the various parties, is narrow in scope and subject
to error.
Third Party Rights to Custody
The law concerning the custody of
children stems from the English legal tradition of property rights.
Thus, any person who is not a parent to a child is a legal stranger.
Recent legislative efforts have granted rights to grandparents to intercede
in legal proceedings involving their grandchildren and to assert rights
to maintain contact.
While stepparents have no defined
legal rights, they have the same rights as any third party to pursue
the custody of a child. There is a clear preference for custody to remain
with the biological parents. Thus, an action by a stepparent to pursue
custody of his or her stepchild in a divorce proceeding will generally
succeed only if the biological parent is extremely inadequate.
The matter of biological preference
frequently produces child custody determinations that appear harsh.
For example, newspaper accounts detailed the high profile dilemmas of
Baby Richard and Baby Jessica, each of whom was placed for adoption
and then, years later, taken from their adoptive homes and returned
to their biological parents when their fathers stepped forward to contest
the adoptions. The painful sagas of Baby Richard and Baby Jessica reveal
the current conflict in the law between the rights of biological parents
and the rights of adoptive, or psychological, parents. Presently, the
law deems the biological attachment to the child as superior to psychological
attachment. To some extent this makes sense; it at least allows for
greater certainty in making difficult custodial decisions. A psychological
versus a biological approach to a custodial award opens a Pandora's
box in the determination of child custody based upon influences that
are highly subjective and volatile in their interpretation. For example,
mothers whose children are in child care eight to ten hours a day could
conceivably run the risk of a custodial battle over who is the real
psychological parent the mother or the child care provider. Further,
a father whose children reside with the mother as the custodial parent
following a divorce would run a real risk of having not only his emotional
but his legal relationship to his children suborned by subsequent marriages.
As the familial relationships within our society
continue to become multifaceted, the superiority of biological preference
in an award of custody will undoubtedly undergo significant challenge.
Consider too, the legal rights that have been afforded to family members
over the last ten years: Children suing their parents for divorce, third
parties suing for custody of children to whom they have no blood relation,
and foster parents pursuing an adoption of a child against relatives.
More layers of complexity can and will be added to these already difficult
legal family issues when questions of race and culture (e.g., biracial
and multiethnic situations) are put into play as well.
