Child Custody

In most Western countries, parents in an intact family make decisions for the children in their custody with relatively little interference from government. Western law accords great deference to family autonomy and privacy. When governmental interference does occur, it is focused on and initiated by concern about harm to children.

Abuse and neglect situations are the most important areas in which government interferes with parental custody. Most jurisdictions authorize an agency, often a juvenile court, to remove children from the custody of their parents if parents fail to meet minimal societal norms of parenting. Although the laws differ considerably from state to state and country to country, they typically authorize intervention because the child is physically or sexually abused or because the parent fails to provide necessary care, food, clothing, medical care, or shelter so that the health of the child is endangered (Clark 1988).

In the United States allegations of parental misconduct are processed by the juvenile court. Unlike other courts, the juvenile court is charged with investigating and evaluating the charges for the purpose of initially providing services to the family so the child remains in the home if possible. These treatment and preventive services may interfere with parental custodial decision making by requiring certain conduct or providing supervision, but they do not remove the child from the residential custody of the parents.

If parental failure continues in spite of limited state intervention, the court, after a hearing, may order the child removed from the home and custody transferred to a public or licensed private social agency to provide care and treatment of the child. Although the legal process is a transfer of custody to an agency, the actual physical care of the child is then placed with foster parents (Wald 1976).

A transfer of custody by a juvenile court is a limited type of custody. It means that the physical care of the child is removed from the parental residence and decisions about the daily care of the child are made by the agency or by the foster parents; the child's parents, however, retain the right to make major decisions, such as decisions about religious training, surgery or other significant medical treatment, or consent to adoption by a new set of parents. The term used to describe the right to make these major decisions is that of parental rights.

The purpose of removing a child from the custody of parents in a juvenile court proceeding is to protect and provide for the child, with the ultimate objective of returning the child to a parental home that is adequate to meet at least minimal parenting requirements. Therefore, in addition to providing care for the child, the state is required by juvenile court statutes to attempt to rehabilitate the parents so they can adequately care for the child.