Before the close of the nineteenth century, courts awarded custody of a child/children to fathers after divorce. This was due to the Property Law and inheritance issues which were in effect and observed during those times. The way how courts perceived who was more capable of providing children’s needs, however, changed during the start of the twentieth century, resulting to the transfer of custodial right to mothers, naturally the better caretakers of young children. This position of the courts served as the basis for “The Tender Years Doctrine,” which was observed up to the 1970s. Today, however, the courts no longer see father or mother as having the sole right for custodianship. If the court finds both spouses fit to care for their child, then the court will never deny the child the love and care of both parents. This is because courts know and believe that the care and love that can be provided by both parents are essential in the growth and development of their child/children. Thus, many courts now decide on joint legal and physical custody, giving both parents equal time and rights over the care and concern of their child/children. Under the joint custody ruling, a child/children may also decide to reside with one parent or may move from one parent’s residence to another.

Joint custody is usually a court’s decision unless it can be proven that one parent is unfit or is not responsible enough to care for his or her child/children. Being an unfit parent can be due to a variety of different reasons, like: a medical condition that would render a parent incapable of providing the amount of care and attention the child/children need/s; abusive parental behavior (physical and/or verbal abuse); a parent being an alcohol and/or drug dependent; a parent exposing his or her child/children to pornographic elements and/or illegal activities; abandonment of the child/children; or, use of excessive, unnecessary forms of discipline.

If both parents are guilty of any of those listed above, then the court can choose to award child custody to grandparents or a court-appointed care taker. If only one parent is considered unfit, then the court may choose to decide on sole custody, awarding custodianship to the parent who has the capability to provide the child’s needs.

States usually consider different factors when resolving the issue of child custody. One underlying factor, however, which remains the same no matter in which state one resides is the “the child’s best interest.” States include the following as falling within the scope of “in the best interest of the child”:

  • The child’s gender and age;
  • The amount of involvement each parent has in activities participated in by the child;
  • The parents’ level of relationship with the child;
  • The health risks and safety of the environment where each parent lives; and,
  • The lifestyle, stability, and health of each parent as these can affect a child’s academic performance.

According to the law firm Marshall & Taylor PLLC, the importance a child custody agreement in the lives of the children and the parents makes this issue one of the most contentious issues during a divorce proceeding. Thus, it is important that parents know what type of custody they intend to have for them to successfully complete their divorce process. If sole custody is the most viable option, then the custodial parent should see to it that the non-custodial parent is given enough time to spend and enjoy with his or her child/children through visitation rights.

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