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Child Custody - Third-party Disputes

gender theory family development law divorce parent family

A child custody dispute may arise between a parent and a nonparent in a variety of contexts. One type of case that has received considerable comment involves the same-gender partner of the child's parent. Other situations involve a stepparent, probably the most common case of a nonparent seeking custody; a relative, including a grandparent; or a third party with whom a parent has placed the child during an extended period. In all of these cases, the child may have lived with the nonparent for most of the child's life, and the non-parent may have been the primary caretaker of the child, forming a very close psychological parent-child bond.

In these types of custodial disputes, the non-parent seeking custody is faced with the traditional rule that the parent is entitled to custody unless that parent is found to be unfit (Buser 1991; Clark 1988). The effect of giving primacy to the interests of the biological parent when the other choice is a nonparent means that the best interests of the child may be disregarded.

Legal scholars have puzzled over the persistence of a rule that seems to place the child's best interests after those of the parent. Some scholars speculate that these cases reflect a concern about the importance of blood ties and a belief that the child's biological parent will in the long run be the most successful caretaker for the child. In addition, courts often show sympathy for a biological parent who has, perhaps after a period of years, now realized how important the child is (Chambers 1990). Finally, in the case of the same-gender partner, the court may express some of the societal ambivalence toward that family form.

Custody for nonparents is an area in which the law is developing and in which changing values and attitudes may result in changes in the law. The American Law Institute's Principles of Family Dissolution treat nonparents who have lived with and cared for a child as de facto parents and authorizes the award of custody to them.

Nonparents often seek another custodially related right, that of visitation. Here they have been more successful, perhaps because one of the major nonparent groups interested in securing visitation rights has been grandparents, who have shown themselves to be very effective lobbyists (Clark 1988). In the United States, although all states have adopted statutes authorizing courts to grant visitation rights—if in the best interests of the child—to grandparents and often to other nonparents, in Troxell v. Granville (2000) the United States Supreme Court struck down a broadly worded Washington statute authorizing the court to grand visitation to "any person." Although the Supreme Court indicated that this did not affect other non-parent visitation statutes, some states have held their statutes to be unconstitutional under Troxell (Bobroff 2000).

Bibliography

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Bartlett, K. T. (1999). "Child Custody in the 21st Century: How The American Law Institute Proposes To Achieve Predictability and Still Protect the Individual Child's Best Interests." Willamette Law Review 35:467–476.

Bobroff, R. (2000). "The Survival of Grandparent Visitation Statutes." Clearinghouse Review 34:284–288.

Bruch, C. S. (1988). "And How Are the Children? The Effects of Ideology and Mediation in Child Custody Law and the Children's Well-Being in the United States." International Journal of Law and the Family 2:106–126.

Buser, P. J. (1991). "The First Generation of Stepchildren." Family Law Quarterly 25:1–18.

Chambers, D. L. (1990). "Stepparents, Biologic Parents, and the Law's Perception of 'Family' After Divorce." In Divorce Reform at the Crossroads, ed. S. D. Sugarman and H. H. Kay. New Haven, CT: Yale University Press.

Charlow, A. (1987). "Whose Child Is It Anyway? The Best Interests of the Child and Other Fictions." Yale Law and Policy Review 5:267–290.

Clark, H. H., Jr. (1988). The Law of Domestic Relations in the United States, 2nd edition. St. Paul, MN: West Publishing.

Czapanskiy, K. (1989). "Child Support and Visitation: Rethinking the Connections." Rutgers Law Journal 20:619–665.

Dudley, J. R. (1991). "Exploring Ways to Get Divorced Fathers to Comply Willingly with Child Support Agreements." Journal of Divorce and Remarriage 14:121–135.

Elrod, L. D. and Ramsay, S. H. (2001). "High-Conflict Custody Cases: Reforming the System for Children— Conference Report and Action Plan." Family Law Quarterly 34:589–606.

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Maccoby, E. E.; Buchanan, C. M.; Mnookin, R. H.; and Dornbusch, S. M. (1993). "Postdivorce Roles of Mothers and Fathers in the Lives of Their Children." Journal of Family Psychology 7:24–38.

Maccoby, E. E., and Mnookin, R. H. (1993). Dividing the Child. Cambridge: Harvard University Press.

Melli, M. S. (1993). "Toward a Restructuring of Custody Decision Making at Divorce: An Alternative Approach to the Best Interests of the Child." In Parenthood in Modern Society, ed. J. M. Eekelaar and P. Sarcevic. Dordrecht, Netherlands: Martinus Nijhoff.

Melli, M. S.; Brown, P. R.; and Cancian, M. (1997). "Child Custody in a Changing World: A Study of Postdivorce Arrangements in Wisconsin." University of Illinois Law Review 1997:773–800.

Milne, A., and Folberg, J. (1988). "The Theory and Practice of Divorce Mediation: An Overview." In Divorce Mediation, ed. J. Folberg and A. Milne. New York: Guilford.

Mnookin, R. H. (1975). "Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy." Law and Contemporary Problems 39:226–293.


Mnookin, R. H., and Kornhauser, L. (1979). "Bargaining in the Shadow of the Law: The Case of Divorce." Yale Law Journal 88:950–997.


Pearson, J., and Thoennes, N. (1988). "Divorce Mediation Results." In Divorce Mediation, ed. J. Folberg and A. Milne. New York: Guilford.

Sapone, A. I. (2000). "Children as Pawns in Their Parents' Fight for Control: The Failure of the United States to Protect Against International Child Abduction." Women's Rights Reporter 21:129–138.


Schepard, A. (1985). "Taking Children Seriously: Promoting Cooperative Custody After Divorce." Texas Law Review 64:687–788.


Scott, E. S.; Reppucci, N. D.; and Aber, M. (1988). "Children's Preference in Adjudicated Custody Decisions." Georgia Law Review 22:1035–1050.


Seltzer, J. A.; Schaeffer, N. C.; and Charng, H. (1989). "Family Ties After Divorce: The Relationship Between Visiting and Paying Child Support." Journal of Marriage and the Family 51:1013–1031.


Weiner, M. (2000). "International Child Abduction and the Escape from Domestic Violence." Fordham Law Review 69:593–706.


Case

Troxell v. Granville, 120 S. Ct. 2054 (2000).


Treaties

Hague Convention on the Civil Aspects of International Child Abduction. (1980).

United Nations Convention on the Rights of the Child. (1989). International Legal Materials, Vol. 48. New York: United Nations.

MARYGOLD S. MELLI

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