The very essence of much of the work we do in our practices centers on how children are created and how they will be raised and cared for once born. Both practitioners of traditional domestic relations law and assisted reproductive technologies (ART) practitioners encounter different phases of this process. All of us have likely encountered changing configurations in the array of people who want to assume or maintain a role in the life of a child. The terminology used from one jurisdiction to another varies widely: rights of access, parental responsibility, and possession are all among the terms used in various settings. However, the term custody may be the one most commonly used by our clients regardless of whether that is or is not the term used in the relevant jurisdiction. As we edited and put this issue together, it was illustrated again that the term means different things to different people. As well, the fact that different people all use that same term does not mean that they all understand it to mean the same thing. In this issue the authors have analyzed and discussed the nuances and principles that may be involved relating to “custody” of a child, literally from conception onward.
Douglas NeJaime addresses one of the most preliminary issues: “Who Is a Parent?” Although “nontraditional” families—including remarriages, unmarried couples, same-sex couples, single parents, adoptive children, and children born with the help of ART—are becoming more common every day, some states have not kept up with these changes. The author catalogues different classes of legal parents, from biological/genetic parents, adoptive parents, presumed parents, intended parents, and functional/de facto parents, and addresses how their standing varies by jurisdiction.
In his article “Legal Custody and Decision-Making,” Ben Schenker discusses the difference between the two types of custody: physical custody (where the child will live and day-to-day decisions) and legal custody (decision-making in major areas such as education, health care, and other significant issues). He explains how family law practitioners can help their clients negotiate a custody agreement that prioritizes the needs of the child even when emotions run high.
Parents in a custody dispute must create a parenting plan proposal and demonstrate that it is in the best interest of the child. In her article “The Many Looks of Physical Custody: A Parenting Plan for Every Situation,” Maleaha L. Brown discusses that challenge. While there is strong judicial and legislative preference for shared physical custody in the majority of custody cases, this is not a “one size fits all” situation.
Before anyone involves a court in addressing child custody issues, it is imperative to identify which state has jurisdiction over the issues. Joseph W. Booth addresses that sometimes confusing issue in his article, “Applying the UCCJEA in Family Law.” The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) seeks to assure that there will not be multiple custodial orders and that orders receive full faith and credit. Because subject-matter jurisdiction may be challenged at any time, family law practitioners should be prepared to interview new clients and have at least a basic understanding of the Act to avoid costly, lengthy, and potentially damaging repercussions.
When it comes to a dispute between parents relating to their child it is not necessarily true that Father (or Mother) knows best. Dr. Robert A. Simon discusses “The Who, When, and Why of Using Experts in Contested Custody Cases.” His article offers guidance on the benefits of adding a specialized forensic psychologist to your legal team in a contested custody case.
Once an expert is involved, the lawyer’s role is not over. Dr. Philip M. Stahl and Rebecca M. Stahl address “Preparing Your Client for a Custody Evaluation.” Topics discussed include helping manage your client’s emotions, handling the psychological testing of either parent, conducting follow-up interviews, and exploring options after the evaluation report is submitted.
Unfortunately, the person most impacted in a custody dispute is typically the least consulted. Wise and compassionate legal practitioners recognize this, but so does the law. Melissa Kucinski writes “Why and How to Account for the Child’s Views in Custody Cases.” Both domestic U.S. custody statutes and international treaties routinely require that children be able to express their views or preferences.
In his article “Parental Interference” Dr. Arnie Shienvold explores the familiar phenomenon of one parent “badmouthing” the other parent in front of the child during a custody proceeding, sometimes as a means of influencing the child’s views. The challenge then becomes how to sort out whether the portrayal is accurate and what is best for the child.
At times family members lack the skills or insight to effectively address parenting challenges without assistance. Annette T. Burns writes on “Parenting Coordination and Co-parenting Counseling: Choosing the Best Intervention for Families.” The author explains the differences between the best-known options and covers how to find out what options your client’s jurisdiction allows and which is right for your client.
When a parent has a history of domestic violence, or any type of violence, a well-drafted custody order can be the only thing standing between a child and potential abuse. As Melissa Averett shares in her article “Domestic Violence and Custody” there are patterns to watch out for. She also discusses how to create a safety plan and why state laws addressing domestic violence may not provide enough of a safety net.
Any disputed custody issue is challenging, but when one parent wants to move the children away from the area where the other parent lives—the challenges are significantly greater. Christopher C. Melcher and David R. Bass have written “Relocation Factors: A Lawyer’s Guide.” They outline the factors courts consider in granting a move-away request by one parent and how attorneys can most effectively prepare. Readers will learn how courts assess the merits of a move-away case, how to gather evidence for or against the move, and how to make a persuasive argument.
“Third-Party Custody, Parental Liberty, and Children’s Interests” is addressed by Barbara A. Atwood. The law and courts favor “fit” parents in third-party custody disputes, even if their conduct has been questionable. Therefore, a nonparent seeking custody, often with the goal of protecting the child or children, must meet a heightened burden of proof than needed for visitation. Atwood offers a picture of the three perspectives: the parents’, the third party’s, and the child’s.
As often happens, scientific advances—and relationships—move faster than the law. When a couple who chose to cryopreserve embryos resulting from in vitro fertilization (IVF) no longer have a future together, they are increasingly turning to the courts to resolve the dispute. But the law isn’t crystal clear. In his article “Divorce 2021: Assets, Earnings . . . But Who Gets the Embryos?” Tim Schlesinger explains what family advocates and family law practitioners can do in the meantime to best serve their clients.