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The History of Child Custody Arrangements

Updated on July 20, 2017

Child custody is “a court's determination of which parent or relative should have physical and/or legal control and responsibility for a minor under 18” (Child Custody, 2015). Child custody arrangements have evolved and transformed since the early 1600’s where orphans were the responsibility of the church and, when old enough, the church sent the children to become apprentices (Child Protection, 2013). Prior to the 1800’s the legal doctrine known as Pater familias stated that children were property and, because women could not own property, fathers were automatically given sole custody of their children (Costanzo & Krauss, 2012). By the 1800’s child custody evolved to include the belief that childhood was an important stage of life that contributed to the development of an adult person (Costanzo & Krauss, 2012). This belief is what led to the tender years doctrine which stated that all children of a young age, generally less than 7 years old, and all female children, were to be given to the custody of the mother unless there were extenuating circumstances (Costanzo & Krauss, 2012). The tender years doctrine was eventually abolished and replaced with the primary caretaker rule that had custody being given to the parent who was primarily responsible for raising the child prior to the divorce (Costanzo & Krauss, 2012). Child custody arrangements have progressed to where they are now decided based on the best interests of the child standard (BICS); this means that the child will be placed in the environment that is most beneficial for the child (Costanzo & Krauss, 2012).

The evolution of child custody in the United States has been greatly influenced by cultural changes. The main cultural change that influences child custody agreements occurred in the mid 1800’s to the 1900’s when it became legal for women to own property. This change influenced the child custody arrangements of the time by allowing for the tender years doctrine to be legalized. The cultural change of giving women more freedom influenced the legal system to allow women to also gain custody of their children. A more present day cultural change that has shaped child custody arrangements is the acceptance of same sex relationships and/or marriage. This cultural change has caused most courts to be legally unable to assume that a gay or lesbian parent is automatically unfit to be a child's primary custodian (Kendell, 2003). The acceptance of same sex relationships has led to children being allowed to remain with and/or being placed in a bisexual, gay, or lesbian home.

The current trends in child custody arrangements in the United States all revolve around the best interest of the child. In some instances this means that the parents have joint custody legal custody, joint physical custody, sole custody with visitation rights for the other parent, sole custody with no visitation rights for the other parent, and/or custody is awarded to someone other than the parent such as: a grandparent, aunt/uncle, foster parent, or another relative. Child custody is decided based on numerous factors whereby each factor is designed to aidt the judge in determining what would be in the best interests of the child.

References

Child Custody. (n.d.) West's Encyclopedia of American Law, edition 2. (2008). Retrieved

January 23 2015 from http://legal-dictionary.thefreedictionary.com/Child+Custody

Child Protection. (2013). Retrieved January 23, 2015, from http://safeguardingchildrenea.co.uk/wp-content/themes/vc_org_1/ChildProtectionTimeLine/childprotectiontimeline.html

Costanzo, M., & Krauss, D. (2012). Forensic and legal psychology: Psychological science applied to law. New York, NY: Worth.

Kendell, K. (2003). Lesbian and Gay Parents in Child Custody and Visitation Disputes. Human Rights, 30(3).

Forensic psychologists are important advisors to the lawyers, mediators, and judges in child custody disputes. Unfortunately, messy child-custody disputes are an all-too-common occurrence when parents divorce. In some especially difficult cases, one parent may make an allegation against the other, and sometimes these allegations are made primarily to gain the support of the courts.
As impartial evaluators, forensic psychologists provide psychological assessments with a focus on parenting. The psychologist informs the fact-finder (usually the judge). Because parenting evaluations are supposed to be impartial by nature, they cannot involve themselves directly in the child-custody hearings. In other words, the forensic psychologist cannot approach the evaluation with any investment in the outcome of the case.
In the case of child abuse and/or neglect, the state must often intervene to provide a safe environment for the child until they can either be safely reunited with their parents or they are placed in a safe living environment. In these cases, forensic psychologists can offer thorough evaluations to help identify risk factors for child mistreatment, as well as ways to ameliorate risk.
Parenting evaluations consist of four major components:
1. Interview: Whenever possible, the psychologist must obtain personal history from the person being evaluated.
2. Record review (or review of "discovery"): The psychologist can receive records from a number of parties to the case and can use prior findings to help formulate a case.
3. Collateral consultation: Is the parent involved with a counselor or a parenting agency? If so, it is usually helpful to conduct a collateral interview with that service provider to ascertain the parent's progress in treatment and what further treatments might be necessary.
4. Psychological testing: Testing is used to help determine if there are underlying risk factors (such as mental illness or low IQ) that might be contributing to the risk to the child.
In all evaluations, the "best interest" of the child is the chief criterion for the judge. A best interest determination can be strengthened with a solid psychological evaluation of a parent.

References

Costanzo, M., & Krauss, D. (2012). Forensic and legal psychology: Psychological science applied to law. New York, NY: Worth.

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