Legal custody[edit]

Legal custody involves the division of rights between the parents to make important life decisions relating to their minor children. Such decisions may include choice of a child's school, physician, medical treatments, orthodontic treatment, counseling, psychotherapy and religion.[4]


Legal custody may be joint, in which case both parents share decision-making rights, or sole, in which case one parent has the rights to make key decisions without regard to the wishes of the other parent.

, an arrangement whereby only one parent has physical custody of the child. The other non-custodial parent would typically have regular visitation rights.[5]

Sole custody

, a shared parenting arrangement where both parents have the child for approximately equal amounts of time, and where both are custodial parents.[5]

Joint physical custody

(also called "nesting" or "birdnesting"[6]), a type of joint physical custody whereby the parents go back and forth from a residence in which the child always reside, placing the burden of upheaval and movement on the parents rather than the child.[7]

Bird's nest custody

, an arrangement whereby one parent has sole custody over some children, and the other parent has sole custody over the remaining children.[8]

Split custody

, an arrangement whereby the child lives for an extended period of time with one parent and an alternate amount of time with the other parent. This type of arrangement is also referred to as Divided custody.[9]

Alternating custody

, an arrangement whereby the children do not remain with either biological parent, and are placed under the custody of a third person.

Third-party custody

Prevalence[edit]

Comparing 36 western countries in 2005/06, Thoroddur Bjarnason studied the proportion of 11-15-year-old children living in different child custody arrangements. The percent of children living in intact families with both their mother and father were highest in Macedonia (93%), Turkey (89%), Croatia (89%) and Italy (89%), while it was lowest in the United States (60%), Romania (60%), Estonia (66%) and Latvia (67%). In the other anglophone countries, it was 70% in the United Kingdom, 71% in Canada and 82% in Ireland. Among the children who did not live with both their parents, the percent in a shared parenting versus sole custody arrangement was highest in Sweden (17%), Iceland (11%), Belgium (11%), Denmark (10%), Italy (9%) and Norway (9%). At 2% or less, it was lowest in Ukraine, Poland, Croatia, Turkey, the Netherlands and Romania. It was 5% in Ireland and the United States and 7% in Canada and the United Kingdom.[16] Shared parenting is increasing in popularity, and by 2016/17, the percentage in Sweden had increased to 34% among the 6-12 year old age group and 23% among 13 to 18-year-old children.[17]

Jurisdiction[edit]

A child custody case must be filed in a court that has jurisdiction over the child custody disputes. Jurisdiction normally arises from the presence of the children as legal residents of the nation or state where a custody case is filed.[18] However, some nations may recognize jurisdiction based upon a child's citizenship even though the child resides in another country, or may allow a court to take jurisdiction over a child custody case either on a temporary or permanent basis based upon other factors.[19]


Forum shopping may occur both between nations and, where laws and practices differ between areas, within a nation. If a plaintiff files a legal jurisdiction that the plaintiff believes to have more favorable laws than other possible jurisdictions, that plaintiff may be accused of forum shopping.


The Hague Convention seeks to avoid this,[20] also in the United States of America, the Uniform Child Custody Jurisdiction and Enforcement Act was adopted by all 50 states, family law courts were forced to defer jurisdiction to the home state.[21]

The current test for best interest generates high costs, which can impose on both the court and opposing parties.

[22]

The verifiability of the best interest standard is hard to achieve. The privacy of family life makes assessing the evidence provided difficult. The best interests standard only worsens the problem, in which both parties are encouraged to introduce evidence of the quality of their parenting (which also promotes trying to disprove the opposing party's capabilities of taking the child into custody).

[22]

In an example of divorce, both parties are experiencing high levels of stress, which could make for a poor basis for assessing family behaviors and relationships.

[22]

Economics[edit]

In an economic analysis, Imran Rasul has concluded that if one parent values child quality more than the other, the spouses prefer that parent to have sole custody, while joint custody is optimal for parents with relatively equal valuation of child quality. He has further concluded that "joint custody is more likely to be optimal when divorce costs fall, so that children retain contact with both parents" and that "this may improve child welfare".[25]

Gender issues[edit]

As the roles of children have changed over the past couple of centuries from economic assets to individuals, so has the role of mothers and fathers in who would provide the best care for the child. Many courts and judges lean more towards the maternal figure when there is a trial for custody of a child. According to Family Change and Time Allocation in American Families study done at UCLA, women allocate about 13.9 hours a week to child care while men allocate about 7 hours a week.[26] Additionally, according to the Current Population Survey, in 2013, custodial mothers were more likely to have child support agreements (52.3 percent) comparative to custodial fathers (31.4 percent).[27]


Women's and father's rights activists often become involved in matters of child custody since the issue of equal parenting is controversial, most of the time combining the interests of the child with those of the mothers or fathers. Women's rights activists are concerned about "family violence, recognizing primary caregiving, and inequities associated with awarding legal joint custody without a corresponding responsibility for child care involvement".[28] Father's rights activists are more concerned about their "disenfranchisement from children’s lives, the importance of parent-child attachment, combating parental alienation, and access enforcement".[28] Courts cannot determine an individual child's best interests with certainty, and judges are "forced to rely on their own interpretations of children’s interests, and idiosyncratic biases and subjective value-based judgments, including gender bias".[28] Judges are currently using the ‘best interest of the child’ standard that was made to consider the interests of the child before the mothers and fathers, including the child's mental, emotional, physical, religious, and social needs.[29]


Child poverty, lack of resources, and women's economic dependence on men all remain pressing issues that are not effectively noted during the custody trials.[28]

Australia[edit]

Each parent has a responsibility under the Australian Family Law Act 1975 for their children. The parental responsibility does not change in cases of separation or dysfunction between the two parents.


In the case of divorce or separation of parents many hurdles can fall in the way regarding the custody of their children, deciding who will be the custodial parent and so forth. In Australia when parents cannot come to an agreement which meets both of their needs when it comes to the custody of their child/ren cases are taken to the Family Court of Australia, which happens in more scenarios than expected. When parents cannot agree on these arrangements and take matters to court, the court makes orders about parental responsibilities, and have the power to approve and make consent orders.[30]

Czech Republic[edit]

In the Czech Republic, both parents are entrusted with child's custody until a court decides otherwise.


A divorce is possible only after a court decision on custody was rendered. A decision should be made within six months, however when parents fail to reach agreement the cases typically take much longer. The court decides with the child's best interest in mind. In case of children 12 years and older, the child's preference becomes key to the court ruling. Court may also refer parents to mediation, try "test modes" of various custody arrangements or request psychological and psychiatrical evaluation of children and parents. In exigent circumstances, a parent can file for preliminary injunction for custody or child support payments. The court must decide on whether to grant the injunction within seven days.[31]

India[edit]

In India, child custody laws primarily fall under personal laws specific to different religions and the secular Guardians and Wards Act, 1890. Here is an overview:


Hindu Law: For Hindus, the Hindu Marriage Act, 1955 and the Hindu Minority and Guardianship Act, 1956, govern child custody. The custody of a child under the age of five is usually granted to the mother, and for children above five, the court considers the child's welfare as the paramount factor.[32][33]


Muslim Law: For Muslims, custody is governed by the personal laws of the parties involved. Generally, the mother gets custody of children until a certain age (Hizanat), after which the father gets custody.


Christian Law: For Christians, the Divorce Act, 1869, govern child custody. It is usually decided based on the welfare principle, considering the best interests of the child.[34]


Parsi Law: Child custody for Parsis is governed by the Parsi Marriage and Divorce Act, 1936, where the court considers the welfare of the child as the main criterion.[35]


Secular Law: The Guardians and Wards Act, 1890, is applicable to all communities and provides provisions for the appointment of guardians for minors and custody issues.[36]


In custody matters, the courts in India focus on the best interests and welfare of the child. They consider factors such as the child's age, education, health, and emotional well-being while deciding custody. It is common for courts to grant joint custody or visitation rights to the non-custodial parent to ensure both parents maintain an active role in the child's life.

Pakistan[edit]

In Pakistan, the Guardians and Wards Act, of 1890 is the principal law that governs child custody. Under that statute and case law, the governing principle in child custody determinations, whether to a parent or third party, is the welfare of the minor.[37]