1
CHAPTER TWELVE
Custody and Visitation
CHILD CUSTODY IS THE RIGHT AND DUTY to care for a child on a day-to-day basis and to
make major decisions about the child.
In sole custody arrangements, one parent takes care of the child most of the time and
makes major decisions about the child. That parent usually is called the custodial parent. The
other parent generally is referred to as the noncustodial parent. The noncustodial parent almost
always has a right of visitation--a right to be with the child, including for overnight visits and
vacation periods.
In joint custody arrangements, both parents share in making major decisions, and both
parents also might spend substantial amounts of time with the child.
As with financial issues in a divorce, most husbands and wives have reached a agreement
on custody before they go to court. Fewer than 5 percent of parents have custody of their child
decided by a judge.
When parents cannot agree on custody of their child, the court decides custody according
to “the best interest of the child.” Determining the best interest of the child involves
2
consideration of many factors. Those factors, along with more information about visitation and
joint custody, will be discussed in later sections of this chapter.
Evolution of Custody Standards
The law of child custody has swung like a pendulum. From the early history of our country until
the mid-1800s, fathers were favored for custody in the event of a divorce. Children were viewed
as similar to property. If a husband and wife divorced, the man usually received the property--
such as the farm or the family business. He also received custody of the children. Some courts
viewed custody to the father as a natural extension of the father's duty to support and educate his
children.
By the mid-1800s, most states switched to a strong preference for the mother. This
preference often was referred to as the Tender Years Doctrine or Maternal Presumption.
Under the Tender Years Doctrine, the mother received custody as long as she was minimall