Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.
Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as "residence" and "contact" (known as "visitation" in the United States) have superseded the concepts of "custody" and "access". Instead of a parent having "custody" of or "access" to a child, a child is now said to "reside" or have "contact" with a parent. For a discussion of the new international standards, see parental responsibility.
Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.
Assessing the best interests of the child
The determination is also used in proceedings which determine legal obligations and entitlements, such as when a child is born outside of marriage, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child that was given up for adoption.
It is the doctrine usually employed in cases regarding the potential emancipation of minors. Courts will use this doctrine when called upon to determine who should make medical decisions for a child where the parents disagree with authorities.
In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers, Family Court Advisors from, psychologists and other child related specialists to determine the living conditions of the child and his custodial and non-custodial parents. Parents may request or deny visitation or custody to fit their own interests, but the overriding consideration is how the child will benefit from interacting with his parents. Such issues as the stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. In English law, section 1(1) Children Act 1989 makes the interests of any child the paramount concern of the court in all proceedings and, having indicated in s1(2) that delay is likely to prejudice the interests of any child, it requires the court to consider the "welfare checklist", i.e. the court must consider:
- The ascertainable wishes and feelings of each child concerned (considered in light of his or her age and understanding);
- His or her physical, emotional and/or educational needs now and in the future;
- The likely effect on him or her of any change in the circumstances now and in the future;
- His or her age, sex, background and any other characteristics which the court considers relevant;
- Any harm which he or she has suffered or is at risk of suffering now and in the future;
- How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs;
- The range of powers available to the court under the Children Act 1989 in the proceedings in question.
The welfare checklist considers the needs, wishes and feelings of the child and young person and this analysis is vital to ensure that the human rights of children are always in the forefront of all consideration. The welfare checklist provides a comprehensive list of issues that need to be considered to ensure that young people who come into court proceedings are safeguarded fully and their rights as citizens are promoted.
Normally it is important that each parent or known guardian remain a strong part of a child’s life, it is equally important that your child not be in an unhealthy environment. In a divorce or custody dispute, it is up to the courts to decide what constitutes an unhealthy environment.
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