Shared Parenting Information Group (SPIG) UK

Child custody and access - US legislation

Contents

• Overriding presumptions
• Temporary custody / Joint custody plan / Best interests of the child
• Factors to be considered when awarding / denying joint custody
• Factors to be considered when evaluating the optimal time for a child to spend with each parent
• Order of preference for awarding custody
• Mediation
• Interviews by the judge
• Reports general / mental health reports / Court welfare reports
• Reasonable access / Conditions for supervised access / Disputes concerning access
• Conditions for makeup of visitation
• Modification or termination of joint custody
• Access to records / Footnote / Back to home page

Overriding presumptions [top]

The need for contact

• The legislature finds and declares that it is the public policy of this state to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.

Joint custody

• There shall be a natural presumption that joint custody is in the best interests of the child.
• The burden of proof that joint custody would not be in a child's best interests shall be upon the parent requesting sole custody. (Louisiana)

Attitude

• The court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well being of their child is in the best interests of the child. (Illinois)

No preference as to which parent

• Neither parent, regardless of the question of the child's legitimacy is entitled to preference in the awarding of custody. (Alaska)
• The court shall not prefer a parent as custodian because of that parent's sex. (California)
• The court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as custodian for a child. (Delaware)
• The court shall not presume that any proposed custodian is better able to serve the best interests of the child because of that person's sex. (Colorado)

Conduct

• The court shall not consider conduct of a proposed custodian that does not affect his relationship with the child. (Colorado, Delaware, Illinois)

Temporary custody [top]

• Unless it is shown to be detrimental to the welfare of the child, the child shall have, to the greatest degree practical, equal access to both parents during the time that the court considers the award of custody. (Alaska)

(Joint) custody plan [top]

• The court shall require both parties to submit a plan or plans for the court's approval. If no plan is submitted, or the court does not approve a submitted plan, the court, on it's own motion shall formulate a plan which shall address and resolve, where applicable, the parties' arrangements for the following :
  • The location of both parties
  • The periods of time during which parent shall have physical custody of the child
  • The legal residence of the child.
  • Rights of access and communication between the respective parents and the child or children
  • The child's education
  • The child's religious training, if any.
  • The child's health care.
  • Finances to provide for the child's needs.
  • Child support - the provision of which shall consider the effect of any dependency exemption granted to a parent by provisions of any revenue law.
  • Holidays and vacations
  • Any other factors affecting the physical or emotional health and well being of the child.
• The court may order mediation in order to assist the parties in formulating or modifying such a plan. (Colorado, Illinois)

Best interests of the child [top]

• The general assembly finds and declares that it is in the best interests of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of child rearing and to encourage the love, affection, and contact between the children and the parents. (Colorado)
• The court shall determine custody in accordance with the best interests of the child. The court, upon the motion of either party or upon its own motion, may order joint or sole custody after making a finding that joint or sole custody would be advantageous to the child and in his best interests. In determining the best interests of the child the court shall consider all relevant factors including (see checklist below) (Colorado)
• In making a determination of the best interests of the child, the court shall, among any other factors it finds relevant, consider all of the following:
  • The health, safety and welfare of the child
  • Any history of abuse against the child.
  • The nature and amount of contact with both parents. (California)
• The court shall determine custody in accordance with the best interests of the child. In determining the best interests of the child the court shall consider all relevant factors including: (Delaware)

Factors to be considered when awarding custody [top]

• The factors to be considered are those which are in the best interests of the child.
• Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
• The wishes of the child's parent or parents as to his custody. (Colorado, Delaware, Illinois)
• The wishes of the child as to his custodian. (Colorado, Delaware, Illinois)
• The child's preference if the child is of sufficient age and understanding to form a preference. (Alaska)
• The needs of the child. (Alaska)
• The interaction and inter-relationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interests. (Colorado, Delaware, Illinois)
• The child's adjustment to his home, school and community. (Colorado, Delaware, Illinois)
• The stability of the home environment likely to be offered by each parent. (Alaska)
• The education of the child. (Alaska)
• The advantages of keeping the child in the community where the child presently resides. Alaska)
• The mental and physical health of all individuals involved. (Colorado, Delaware, Illinois)
• The ability of the custodian to encourage the sharing of love, affection, and contact between the child and the non custodial party. (Colorado)
• Credible evidence of the ability of the parties to cooperate and to make decisions jointly. (Colorado)
• Credible evidence of the ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party. (Colorado)
• Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support which would indicate an ability as joint custodians to provide a positive and nourishing relationship for the child. (Colorado)
• The physical proximity of the parties to each other as this relates to the practical considerations of awarding joint custody. (Colorado)
• Whether an award of joint custody would promote more frequent or continuing contact between the child and each of the parties. (Colorado)
• Whether one of the parties has been the perpetrator of child abuse or neglect. (Colorado)
• Whether one of the parties has been the perpetrator of spouse abuse. (Colorado)
• Physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person and witnessed by the child (Illinois)
• The optimal time for the child to spend with each parent (see below) (Alaska)
• Any findings and recommendations of a neutral mediator. (Alaska)
• Whether there is a history of violence between the parents. (Alaska)
• Other factors which the court considers pertinent. (Alaska)
• Which parent is more likely to allow the child frequent and continuing contact with the other parent. (California)

Factors to be considered when evaluating the optimal time for a child to spend with each parent : [top]

• The actual time spent with each parent;
• The proximity of each parent to the other and to the school in which the child is enrolled;
• The feasibility of travel between the parents;
• Special needs unique to the child which may be better met by one parent than the other;
• Which parent is more likely to encourage frequent and continuing contact with the other parent; (Alaska)

Factors to be considered before denying joint custody [top]

• The love, affection and other emotional ties existing between the parties involved and the child
• The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any
• The capacity and disposition of the parties involved to provide the child with food, clothing, medical care and other material needs
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity
• The permanence, as a family unit, of the existing or proposed custodial home or homes.
• The moral fitness of the parties involved.
• The mental and physical health of the parties involved.
• The home, school and community record of the child.
• The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
• The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
• The distance between the respective residences of the parties
• Any other factors which appear to the court to be relevant. (Louisiana)

- effectively the 'best interests' list again

Order of preference for awarding custody - temporary or final. [top]

To both parents jointly, or to either parent.

If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (California, Louisiana)

Mediation [top]

Interviews by judge [top]

Reports [top]

Mental health reports [top]

Court welfare reports [top]

The report shall be made available to all parties at least 10 days prior to the hearing (California)

Either party may have the right to challenge the contents of such a report.

Reasonable access [top]

• The court shall order reasonable visitation rights to a parent unless it is shown that such visitation would be detrimental to the best interests of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child. (California)
• The court may restrict or deny visitation rights only if it finds that visitation would endanger the child's physical health or significantly impair his emotional development. (Colorado)

Conditions for supervised access [top]

Disputes concerning access [top]

• Deny the motion if there is an inadequate allegation; or
• Set the matter for hearing with notice to the parents of the time and the place of the hearing; or
• Require the parties to seek mediation and report back to the court on the results of mediation within 60 days.

• Imposing additional terms and conditions which are consistent with the court's previous order.
• Modifying the previous order to meet the best interests of the child.
• Requiring the violator to post bond or security to insure future compliance.
• Requiring that makeup visitation be provided for the aggrieved parent or child (see below).
• Finding the parent who did not comply with the visitation schedule in contempt of court and imposing a fine or jail sentence.
• Scheduling a hearing for modification of custody, if such a motion has been filed.
• Awarding to the aggrieved party, where appropriate, actual expenses, including attorney fees, court costs and expenses incurred by a parent because of the other parent's failure to provide or exercise visitation as ordered by the court. Nothing in this section shall preclude a party's right to a separate and independent legal action in tort.

Conditions for makeup of visitation [top]

• That the visitation is of the same type and duration as the visitation which was denied, including but not limited to visitation during weekends, on holidays, and on weekdays and during the summer;
• That the visitation is made up within one year after the non- compliance occurs;
• That such visitation is in the manner chosen by the aggrieved parent if it is in the best interests of the child. (Colorado)

Modification or termination of joint custody [top]

If a motion for modification has been filed, whether or not it was granted, no subsequent motion may be filed within two years after disposition of the prior motion unless the court decides, on the basis of affidavits, that there is reason to believe that the child's present environment may endanger his physical health or significantly impair his emotional development.

The court shall not modify or terminate a prior custody decree unless it finds, upon the basis of facts which have arisen since the prior decree, or which were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. In applying these standards the courts shall retain the custodian established by the prior decree unless:

• The custodian agrees to the modification
• The child has been integrated into the family of the petitioner with the consent of the custodian; or
• The child's present environment endangers his physical health or significantly impairs his emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

Access to records [top]

• A parent who is not granted custody has the same access to medical, dental, school and other records of the child as the custodial parent. (Alaska)
• Access to records and information about a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because such parent is not the child's primary residential patent. (Florida, Colorado, Louisiana)

Footnote [top]

• The love, affection, and other emotional ties existing between the parties involved and the child.
• The capacity and disposition of the parties involved to give the child love, affection and guidance of the educating and raising of the children in its religion or creed, if any.
• The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care, and other material needs.
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
• The permanence, as a family unit, of the existing or proposed custodial home or homes.
• The moral fitness of the parties involved.
• The mental and physical health of the parties involved.
• The home, school and community record of the child.
• The reasonable preference of the child if the court deems the child to be of sufficient age to express preference.
• The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
• Any other factors which appear to the court to be relevant. (Michigan)

David Cannon