1. Chapter 8:
Child Custody
12
Family Law for the Paralegal
2nd Edition
Wilson
Class Name
Instructor Name
Date, Semester

2. LEARNING OBJECTIVES
After this lecture, you should be able to:
8.1 Identify various types of child custody.
12
Identify at least three jurisdictional issues that
8.2 sometimes arise in child custody cases.
Describe the primary standards that guide the
8.3 courts when making child custody decisions,
including the “best interests of the child”.
Class Name
Instructor Name
Date, Semester
Cont.

3. LEARNING OBJECTIVES
After this lecture, you should be able to:
8.4
List some of the major factors courts consider
when making decisions about custody and
12
visitation.
Describe the nature and purpose of parenting
8.5 plans.
Explain why parent education programs are
8.6 important.
Class Name
Instructor Name
Date, Semester
Cont.

4. LEARNING OBJECTIVES
After this lecture, you should be able to:
8.7 Explain when and how custody and visitation 12
orders may be modified.
Explain how custody and visitation orders may
8.8 be enforced.
Describe the rights of third parties in the custody
8.9 context.
Class Name
Instructor Name
Date, Semester
Cont.

5. LEARNING OBJECTIVES
After this lecture, you should be able to:
8.10 Explain who speaks for the child in custody 12
matters.
Describe the role of the paralegal in a custody
8.11 case.
Class Name
Instructor Name
Date, Semester

6. Learning Objective
After this lecture, you should be able to:
Identify various types of child
8.1 custody.

7. What are the various types of
8.1 custody?
• In traditional terms:
– Physical custody: custody relating to where and with whom the
child primarily resides (may be sole or joint)
– Legal custody: custody relating to decision-making authority with
respect to major issues affecting a child (may be sole or joint)
– Sole award: an award made to one party only (may apply to
physical or legal custody)
– Joint award: an award made to both parents (may apply to
physical or legal custody)
• Many states have adopted new terminology that
emphasizes parental cooperation and a child-centered
focus, for example, by calling physical custody
“residential responsibility” and legal custody “decision
making responsibility.”
7

8. What are the most common
8.1 types of custody awards?
• Custody awards are tailored to the circumstances of
each case. Absent evidence of unfitness, parents
are generally considered to have equal rights to
custody.
• The two most common custodial arrangements are:
– Joint legal custody, sole physical custody in one parent with
reasonable rights of visitation in the other
– Joint legal and physical custody
• Although not favored, courts sometimes will award
split custody when appropriate (each parent has
legal and/or physical custody of one or more of the
parties’ children).
8

9. Learning Objective
After this lecture, you should be able to:
Identify at least three
jurisdictional issues that
8.2 sometimes arise in child custody
cases.

10. What are some of the jurisdictional issues
8.2 that arise in child custody cases?
• Problems are minimal in cases in which the parents’
identities are known and they reside in the same
state.
• Problems are more likely to arise when:
– The parents live in different states
– One parent leaves the state where the parties had lived and
takes the children with him or her without the other party’s
consent
– The parties file for custody in two different states
– During a visit, a parent essentially kidnaps a child and takes
him or her to another country
– A parent seeks to modify an existing custody order in a state
different from the state where the original order was entered
10

11. 8.2 What are some of the jurisdictional issues that arise in
child custody cases? (continued)
• In resolving problems that arise, the courts refer to
several key acts including the following three:
– The Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), adopted in all states, is designed to reduce
jurisdictional conflicts between states, deter child abductions
to other states, avoid relitigation of decisions in nonissuing
states, and ensure that custody matters are heard in the state
with the closest connection with the child by giving priority to
home state jurisdiction.
– The Parental Kidnapping Prevention Act (PKPA), the major
federal child custody jurisdiction act, is designed not only to
prevent parental kidnapping but also to maintain jurisdiction
in one court over custody orders pertaining to a given child in
interstate cases.
11

12. What are some of the jurisdictional issues
8.2 that arise in child custody cases?
(continued)
• The Hague Convention on the Civil Aspects of
International Child Abduction endorsed by more
than fifty nations establishes administrative and
judicial procedures to expedite the return of children
who have been abducted or wrongfully retained
and to facilitate the exercise of visitation rights
across international borders.
12

13. Learning Objective
After this lecture, you should be able to:
Describe the primary standards
that guide the courts when
8.3 making child custody decisions,
including the “best interests of
the child”.

14. What are the 6 major approaches that have
8.3 been used to guide custody decisions over
the years?
• Early approaches included the following gender-
biased approaches:
– Paternal preference: the common law doctrine that fathers
had an absolute right to the care and custody of their children
– Maternal preference: the concept that custody should be
awarded to a mother over a father provided she is fit
– Tender years doctrine: the doctrine holding that custody of
very young children should be awarded to the mother as the
natural custodian of young and immature children provided
she is fit
14

15. What are the 6 major approaches that have been
8.3 used to guide custody decisions over the years?
(continued)
• Contemporary gender-neutral approaches include
the following:
– Best interests of the child: the majority approach today, this
standard focuses on the needs of the child over the rights or
wishes of the parents; the states identify by statute or case law
a series of “best interest factors” for courts to consider when
making custody determinations (See Exhibit 8.1 on pages 257
and 258 of the text for an example of a best interests statute.)
15

16. What are the 6 major approaches that have been
8.3 used to guide custody decisions over the years?
(continued)
• The primary caretaker presumption: the concept
that the individual who has performed most of the
significant parenting tasks for the child since birth or
in the years preceding the divorce should be
granted custody
• The American Law Institute’s Approximation Rule: the
rule that the custodial responsibilities of the parents
at dissolution should be allocated in a manner that
approximates the proportion of time each parent
spent caring for the child when the family was intact
(See Paralegal Application 8.2 on page 260 of the
text for an example of typical caretaking activities
considered.)
16

17. Learning Objective
After this lecture, you should be able to:
List some of the major factors
courts consider when making
8.4 decisions about custody and
visitation.

18. 8.4 What are some of the factors courts consider when
making decisions about custody and visitation?
• Availability: This is a relevant factor because the
courts consider whether or not parents are available
to participate in activities with their children such as
school and recreational activities, medical
appointments, homework, daily routines, etc.
• Stability: Courts strive to maintain as much stability
and continuity in parenting arrangements as
possible to avoid disruption for the child.
• Gender: The public policy of virtually all states is that
fit parents have equal custody rights regardless of
gender.
18

19. What are some of the factors courts consider when
8.4 making decisions about custody and visitation?
(continued)
• Race: The Equal Protection Clause of the Constitution
prohibits the making of custody decisions based on
racial bias. See Case 8.1 Palmore v. Sidoti (1984) on
pages 262-263 of the text.
• Religion: The majority of courts have affirmed each
parent’s right to freedom of religion and to parent a
child by providing religious exposure and instruction
as he or she sees fit unless the child is being harmed.
• Parental health or disability: Poor mental or physical
health will not necessarily render a parent unfit. The
courts will examine the “nexus” between the
condition and the parent’s capacity to provide
proper child care.
19

20. What are some of the factors courts consider when
8.4 making decisions about custody and visitation?
(continued)
• Sexual activity: The majority view is that a parent’s
sexual behavior or cohabitation should not play a
role in a custody decision unless there is a
connection between the behavior and the health
and welfare of the child. Tolerance is higher for
heterosexual relationships.
• Parental lifestyle: Based on statutes and case law,
moral character and conduct count under some
circumstances. The critical question is does a
behavior such as smoking harm the child as in the
case of an asthmatic child.
20

21. What are some of the factors courts consider when
8.4 making decisions about custody and visitation?
(continued)
•History of abuse: Every state provides by statute or case law
•Child preference: Today children’s preferences may be
•Parental cooperation: Courts will look at the extent to which
21

22. Learning Objective
After this lecture, you should be able to:
Describe the nature and purpose
8.5 of parenting plans.

23. What is the nature and purpose
8.5 of a parenting plan?
• A parenting plan is a written agreement in which the
parents of a child lay out plans for taking care of
their child/ren post separation or post divorce. It
may be in the form of a document called a
parenting plan or in the form of custody and child
support exhibits in a separation/marital agreement.
• When joint custody is not desirable or feasible, the
parenting plan will typically address visitation
arrangements with the noncustodial parent, unless it
would pose a threat to the child’s health and
welfare.
23

24. What is the nature of a visitation
8.5 component in a parenting plan?
• There are no fixed formulas for visitation provisions.
• They are shaped primarily by the degree to which the parents
are able to communicate about the children’s needs and
schedules, appropriate parenting behaviors, and goals for the
children’s welfare. They may reflect input from the children
based on their ages and maturity levels.
• Visitation schedules range from highly detailed provisions to
flexible open-ended arrangements. Most fall in-between.
• Agreements/plans may include a virtual visitation component
(communication with children through the use of technology).
• Most visitation is unsupervised but the courts may order
supervised visitation in appropriate circumstances (e.g history
of domestic abuse).
• See an example of a detailed provision on pages 427-433 in
Exhibits B and C of Exhibit 12.2 Sample Separation Agreement.
24

25. What are the goals of parenting
8.5 plans?
• Parenting plans are designed to:
– Promote cooperative planning.
– Minimize disputes and continued hostility over parenting
issues.
– Provide for the children’s care.
– Maintain the child’s emotional stability.
– Provide for the child’s changing needs as they grow and
mature minimizing the need for modifications.
– Set forth the authority and responsibilities of each parent with
respect to the child.
– Minimize the child’s exposure to harmful parental conflict.
– Otherwise protect the child’s best interests.
25

26. Learning Objective
After this lecture, you should be able to:
Explain why parent education
8.6 programs are important.

27. What are parent education programs and
8.6 what are their primary purposes?
• Many states require divorcing/separating parents to
complete a parent education program designed to
sensitize them to the needs and feelings of their children
who are impacted by their parents’ divorce.
• The primary purposes of parent education programs are
to:
– Encourage parents to work cooperatively for the benefit of their
children.
– Help children through the difficult period of divorce and
separation.
– Reduce postdivorce litigation and court appearances.
– Parents usually attend different sessions and waivers of
participation may be obtained in limited circumstances such as
when there is a history of abuse.
27

28. What topics does the curriculum of a parent
8.6 education program commonly address?
• The emotional effects of divorce on parents and children
• What parents can do to help their children adjust
• Communication and co-parenting skills
• Developmental stages and needs of children
• Factors that contribute to a child’s healthy adjustment
• Techniques of problem solving and conflict resolution
• Warning signs that children are having problems
• Available community resources
• The function and value of parenting plans
28

29. Learning Objective
After this lecture, you should be able to:
Explain when and how custody
8.7 and visitation orders may be
modified.

30. When and how can custody and
8.7 visitation orders be modified?
• The usual process for modifying custody involves filing a
Motion (Petition/Complaint) for modification of custody
typically accompanied by a supporting affidavit in the
court that has continuing jurisdiction followed by notice to
the other party and a hearing in which each party has an
opportunity to testify, call witnesses, and offer other
evidence in support of their position.
• Typically a party seeking to modify a custody order must
show that:
– There has been a substantial and material change in
circumstances that affects the child’s welfare
– The change has occurred since entry of the decree and was not
foreseeable
– The change warrants a modification of custody
– The change will be in the child’s best interests
30

31. When and how can custody and visitation
8.7 orders be modified? (continued)
• Motions for modification are likely to be granted if:
– the parties agree to modification.
– it is clear that the initial allocation of parental rights and
responsibilities is not working.
– there is clear and convincing evidence that the child’s present
environment is harming his or her physical, mental, or emotional
health.
– there is repeated, intentional, and unwarranted interference by
one parent with the parenting rights and responsibilities of the
other parent.
– there is a change in one of the parent’s circumstances that
significantly affects his or her fitness or availability as a parent.
• Relocation cases present a special challenge. The trend
is to permit them if satisfactory alternative parenting time
can be arranged for the noncustodial parent, there are
no bad faith motives for the move, and the relocation will
be in the child’s best interest.
31

32. Learning Objective
After this lecture, you should be able to:
Explain how custody and
8.8 visitation orders may be
enforced.

33. How are custody orders usually
8.8 enforced?
• When a parent fails to comply with court-ordered
custody and visitation provisions, the wronged
parent will usually file a complaint for contempt and
potentially one for modification of both custody and
child support as well.
• The court may find the defendant parent in
contempt and has the power to order them to pay a
fine or go to jail or both. The court more likely will
modify custody, impose conditions on visitation,
award attorneys’ fees to the other party, and in
especially egregious cases, deny visitation.
33

34. Learning Objective
After this lecture, you should be able to:
Describe the rights of third
8.9 parties in the custody context.

35. What are the rights of third parties
8.9 in the custody context?
• Nearly 14 million children in the United States live
with parties other than their parents and that number
continues to grow. Those parties include surrogate
parents, de facto parents, psychological parents,
and foster parents among others.
• There are two competing views regarding the
custodial and visitation rights of third parties:
– The view that biological parents have a presumptive right to
custody of their children and to parent them as they see fit.
– The view that it is in the best interests of children to be placed
with whichever adult will provide the healthiest and most
stable environment for the child.
35

36. 8.9 Which “third parties” most often petition for custody
and/or visitation and with what results?
• Standing of third parties to seek custody or visitation
is usually established by statute or case law.
• The categories of individuals who most often petition
are the following:
– Unmarried fathers
– Step-parents
– Grandparents
– Co-parents
36

37. 8.9 Which “third parties” most often petition for custody
and/or visitation and with what results? (continued)
• Unmarried fathers:
– Unmarried fathers do not have the same rights and obligations
as married fathers.
– Many unmarried fathers have tried but been “thwarted” in
their efforts to be fathers to their children and they have
become in effect third parties while other fathers have
knowingly failed to acknowledge fatherhood in a timely
manner.
• The states vary in their approaches to unmarried
fathers ranging from setting a fixed window within
which fathers must establish paternity to an
approach tailored to the facts of individual cases.
37

38. 8.9 Which “third parties” most often petition for custody
and/or visitation and with what results? (continued)
• Step-parents:
– It is estimated that 1 in 4 children will live with a step-parent before
reaching the age of majority.
– The law is unclear and inconsistent with respect to the rights of step-
parents.
– The majority view is that a step-parent’s rights flow from marriage to the
child’s parent and do not survive divorce.
– A minority of states impose financial obligations on step-parents in limited
circumstances such as when they have voluntarily supported their step-
children.
• A limited number of states afford step-parents standing to
petition for custody and visitation in some circumstances often
struggling to find legal theories to support their efforts to play a
role in their stepchildren’s lives.
• See Case 8.3 McAllister v. McAllister (2010) on pages 282-283,
a case in which a stepfather was granted visitation rights.
38

39. 8.9 Which “third parties” most often petition for custody
and/or visitation and with what results? (continued)
• Grandparents:
– In 2009, nearly 12% of all children were living in households with at
least one grandparent present.
– Under common law, grandparents had no standing to petition for
custody or visitation of their grandchildren.
– Now legislatures in every state provide standing for grandparents
to petition for custody and visitation rights in some circumstances.
• However, after the Supreme Court’s decision in Troxel v.
Granville (2000) (see Case 8.4 on pages 284-285 of the
text), presumptive validity must be given to a fit parent’s
objection and the grandparent must establish more than
that visitation will be in the child’s best interest. They must
essentially show that refusal to grant visitation will cause
significant harm to the child’s health, safety, and welfare.
39

40. 8.9 Which “third parties” most often petition for custody
and/or visitation and with what results? (continued)
• Co-parents:
– A co-parent is a person who is engaged in a nonmarital
relationship with the legal parent of a child and who regards
himself or herself as a parent rather than as a legal stranger to the
child.
– Some co-parents adopt the child to protect their rights and
obligations with consent of the legal parent.
– Co-parents rely on a variety of legal theories to maintain a
relationship with a child they have helped raise after the
relationship with the child’s legal parent has ended.
• Decisions are mixed in cases involving same-sex co-
parents. Many states deny standing as parents but afford
third party status as a person with a significant
relationship to the child (like a grandparent). See Case
8.5 Mullins v. Picklesmeier (2010) on pages 287-288.
40

41. Learning Objective
After this lecture, you should be able to:
Explain who speaks for the child
8.10 in custody matters.

42. Who speaks for the child in
8.10 custody matters?
• Those who “speak for” children include the following:
• Guardian ad litem (GAL):
– A GAL is a neutral evaluator appointed by the court (often at
the request of one or both parents) to assess the interests of
the children whose custody is in dispute.
– The guardian may be an attorney, social worker, or a
psychologist.
– The primary role of the GAL is to examine the child’s situation
as fully as possible and make a recommendation to the court.
• Court Appointed Special Advocates (CASA):
– A CASA volunteer is a court-appointed volunteer advocate
who works one-on-one with abused and endangered
children.
42

43. Learning Objective
After this lecture, you should be able to:
Describe the role of the
8.11 paralegal in a custody case.

44. What is the role of the paralegal
8.11 in a custody case?
• The major task performed include:
– Researching the law governing custody actions in the jurisdiction
– Scheduling and participating in interviews as assigned
– Gathering information and documentation as requested (See
Paralegal Application 8.6 Information Gathering in a Contested
Custody Case on page 291)
– Drafting formal discovery materials and conducting informal
discovery as directed
– Drafting correspondence, pleadings, motions, affidavits etc.
involving custody matters
– Drafting parenting plans/custody exhibits
– Assisting in preparation for hearings and trials etc.
– Coordinating communication with experts, parenting
coordinators, GALs, CASA volunteers, etc.
44

45. Chapter Summary
8.1 Identify various types of child custody.
12
Identify at least three jurisdictional issues that
8.2 sometimes arise in child custody cases.
Describe the primary standards that guide the
8.3 courts when making child custody decisions,
including the “best interests of the child”.
Class Name
Instructor Name
Date, Semester
Cont.

46. Chapter Summary
8.4
List some of the major factors courts consider
when making decisions about custody and
12
visitation.
Describe the nature and purpose of parenting
8.5 plans.
Explain why parent education programs are
8.6 important.
Class Name
Instructor Name
Date, Semester
Cont.

47. Chapter Summary
8.7 Explain when and how custody and visitation 12
orders may be modified.
Explain how custody and visitation orders may
8.8 be enforced.
Describe the rights of third parties in the custody
8.9 context.
Class Name
Instructor Name
Date, Semester
Cont.

48. Chapter Summary
8.10 Explain who speaks for the child in custody 12
matters.
Describe the role of the paralegal in a custody
8.11 case.
Class Name
Instructor Name
Date, Semester