The right to care for and determine how a child gets raised is known as custody. All parents have custody rights to their children, although how these rights are determined and what effect they have differs from case to case. These custody rights are deemed fundamental, and unless significant and harmful conditions can be shown, a parent's custody rights cannot be taken away.
Basis
Both federal and state laws establish rights to child custody, and the laws that grant them. In cases like Troxel versus Granville, the Supreme Court of the United States has repeatedly held that the right of a parent to have custody over his child is a fundamental one. Parents' legal rights to care for and raise their children cannot be taken away unless it can be proven that the parents' actions are not in the best interests of the child.
Factors
Courts determine custody issues based on what is in the bests interests of the child. This test presumes the parents’ rights to decide how a child is raised, and presumes the parents have custody rights over their children. Even though a parent's custody rights are presumed, courts can intervene if the best interests of the child require them to. The court considers factors like the relationship between the child and parent, any history of abuse or domestic violence, and the needs of the child when evaluating custody decisions.
Effects
A parent's right to custody includes both the right to make decisions concerning how the child is raised, known as legal custody, and the right to live with or visit the child, known as physical custody. When parents are not married or are not living together, the rights of both parents must be met by any court ruling on custody. This is commonly done through the use of parenting plans that detail the rights and obligations of each parent with regards to custody and visitation times, as well as detailing how the parents can coordinate or decide on child rearing decisions.
Misconceptions
For much of the 20th century, courts used the "tender years doctrine" to determine matters of child custody. This doctrine presumed that a mother was naturally more suited to raise and care for a child, and thus gave mothers the presumed right to custody over a father. However, courts have since adopted the best interests tests, and state law specifically prohibits presumptions of one parent over the other based on the parent's sex.
Warnings
Your rights to child custody are affected by numerous factors, and only an experienced attorney can advise you about any custody concerns you have. Your rights can change at any time, and you should always contact a licensed attorney in your area. Make sure your attorney is experienced with child custody issues in your state because each state's laws can be different.
