NCJ Number
50574
Date Published
1976
Length
28 pages
Annotation
TRENDS IN CUSTODY LAW ARE DISCUSSED IN REGARD TO MAJOR STRANDS OF THE LAW, AND THE DIFFICULTY IN ASSESSING WHAT CONSTITUTES THE BEST INTEREST OF THE CHILD IS ANALYZED ACCORDING TO TWO SEPARATE JUDICIAL FUNCTIONS.
Abstract
FOUR STRANDS OF THE AMERICAN CUSTODY LAW ARE DESCRIBED: DIVORCE CUSTODY LAW, JUVENILE COURT NEGLECT LAW, GUARDIANSHIP CUSTODY LAW, AND INVOLUNTARY TERMINATION OF PARENTAL RIGHTS FOR PURPOSES OF FREEING A CHILD FOR ADOPTION. THE BEST INTEREST TEST, IN WHICH AN INDIVIDUALIZED DETERMINATION FOR THE PARTICULAR CHILD IS REQUIRED, DOMINATES CUSTODY LAW. IT IS ARGUED THAT THE BEST INTEREST TEST IS NOT APPROPRIATE SINCE THE JUDGE MUST HAVE ACCESS TO CONSIDERABLE INFORMATION ON THE TWO PARENTS AND ON THE CHILD, AND FROM THIS INFORMATION, MUST ASSESS THE PROBABILITY OF VARIOUS OUTCOMES AND EVALUATE THE SERIOUSNESS OF POSSIBLE BENEFITS ASSOCIATED WITH EACH. IN THIS SITUATION, THE QUESTION ARISES AS TO WHAT SET OF VALUES THE JUDGE SHOULD USE IN COMING TO A DECISION. THE STANDARDS IN SUCH A CASE ARE INDETERMINATE. COURTS PERFORM TWO FUNCTIONS IN A CUSTODY CASE--A PRIVATE DISPUTE FUNCTION AND A CHILD PROTECTION FUNCTION. THE IMPLICATIONS FOR THESE TWO FUNCTIONS ON THE INDETERMINATE STANDARD ARE DISCUSSED. IT IS CONCLUDED THAT THE STANDARD IS NOT APPROPRIATE. THREE RULES FOR CHILD CUSTODY STANDARDS ARE SUGGESTED: (1) IN A PRIVATE DISPUTE, CUSTODY SHOULD NOT BE AWARDED TO A CLAIMANT WHOSE CAPACITIES OR CONDUCT WOULD ENDANGER THE HEALTH OF THE CHILD UNDER THE STRICT MINIMUM STANDARDS FOR CHILD PROTECTION; (2) THE COURT SHOULD PREFER A PARENT WITH AN EMOTIONAL RELATIONSHIP TO THE CHILD OVER A PARENT WITHOUT THAT RELATIONSHIP; AND (3) SUBJECT TO THESE TWO RULES, NATURAL PARENTS SHOULD BE PREFERRED OVER OTHERS. STRICTER REQUIREMENTS FOR REMOVING A CHILD FROM THE HOME ARE ADVOCATED AS ARE SHORTER TIME LIMITS FOR TERMINATION OF PARENTAL RIGHTS. PRIVATE DISPUTE SETTLEMENT IN DIVORCE CUSTODY CASES IS URGED. (DAG)