Legal control of a child, usually of one who resides with the custodial parent. Foster parents are not considered to have legal custody: state social services departments retain control over major decisions about a child. Adoptive parents obtain complete custody of a child upon finalization of an adoption in a court of law.
Custody battles abound in the courtrooms, and most suits are between divorcing parents, although single parents have also argued over custody. In addition, relatives have argued for custody, including grandparents versus birthparents, aunts versus stepparents and many other variations. The court usually considers such factors as the "best interests of the child" as well as blood relationships, where the child has resided in the past and other issues, depending on state laws.
It is important for attorneys and judges to avoid making judgments about child psychology when psychologists, social workers and psychiatrists are trained to provide such information. Conversely mental health workers should avoid making legal decisions and should instead rely on legal counsel. For example, according to the authors of In the Best Interests of the Child, in one case a judge stated reasons why he decided to award custody to a mother: he found the father to be a "demeaning person" and made other psychological judgements about the father. This action was inappropriate because he was, in effect, acting as a child development professional or psychologist but one who could not be cross-examined.
In 1989, two separate lawsuits were filed over the custody of frozen embryos. In one case, divorcing spouses fought over custody, and in another case, a married couple sought custody of a frozen embryo from an in vitro fertilization clinic.
In recent years, birthfathers have begun to attempt to gain custody of their out-of-wedlock children. In some cases, most notably the "Baby Jessica" and "Baby Richard" cases, they have prevailed, while in others they have not. (See BIRTHFATHER; BIRTHMOTHER.)
There have also been custody battles between adoptive parents seeking to retain custody of an infant or toddler and birthparents who wished to revoke their consent to an adoption. Judges must decide the custody issue based on state law, legal precedents, the "best interests of the child" and a variety of factors.
Often the custody battles and appeals take years and cause serious emotional anguish to both sides-and probably to the child as well. (See also CONSENT [TO AN ADOPTION]; GRANDPARENTS RIGHTS; TERMINATION OF PARENTAL RIGHTS.)
Joseph Goldstein, Anna Freud, Albert J. Solnit and Sonja Goldstein, In the Best Interests of the Child (New York: Free Press, 1986).
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©2000 by Christine Adamec and William Pierce, Ph.D. Reprinted from The Encyclopedia of Adoption, 2nd Edition (2nd Edition) with permission of Facts On File, Inc.
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