Custody
CUSTODY
The care, possession, and control of a thing or person. The retention, inspection, guarding, maintenance, or security of a thing within the immediate care and control of the person to whom it is committed. The detention of a person by lawful authority or process.
In re the Marriage of LaMusga
Custody disputes between divorced spouses can place enormous emotional pressures on their children. Issues concerning physical custody, legal custody, visitation rights of the non-custodial parent, and child support can be contentious and constant. The courts are routinely brought into these disputes to make decisions. One of the most troublesome custody issues arises when the custodial parent decides to move a substantial distance away from the non-custodial parent. In these cases, the courts have to decide whether to permit the custodial parent to take the children to the new location or to shift custody to the non-custodial parent. The California Supreme Court, in In re the Marriage of LaMusga, 12 Cal. Rptr. 3d 356 (2004) attempted to clarify the factors that family courts must use in making such decisions.
Susan and Gary LaMusga were married in 1988 and had two children. Garrett was born in 1992, and Devlen in 1994. In May 1996, Susan LaMusga filed for dissolution of the marriage and asked for sole physical custody of the boys. Gary LaMusga objected, asking for joint legal and physical custody. The couple could not work out a visitation schedule, which led the state court judge to order a child-custody evaluation by a licensed psychologist. The evaluation report revealed great hostility between the couple and a complete lack of mutual trust. Mrs. LaMusga argued that she should have sole physical custody because her husband could not care for the boys adequately. She also mentioned that she wanted to move from California to Cleveland, Ohio, where she had relatives. From Mr. LaMusga's perspective, his wife had set out to alienate the boys from their father by creating a hostile environment. He strongly objected to having the children live 2,000 miles away. In November 1996, the court awarded the parties joint legal custody and gave Mrs. LaMusga primary physical custody. Mr. LaMusga was given visitation rights. A final dissolution decree was entered in December 1997.
The relationship between the divorced couple did not improve. In addition, both of them remarried within a short time. Then, in February 2001, the mother asked the court to permit her to move to Cleveland and to take the boys with her. Gary LaMusga filed an objection to the request and asked the court to transfer physical custody to him. He argued that his former wife sought to cut off his relationship with his sons and that he feared that the move would result in the boys "being lost to their father." The judge asked the psychologist who had conducted the original custody evaluation to revisit the issue to determine whether it was in the best interests of the children to move out of state. The psychologist concluded that the mother wanted to make the move in part to end the boys' day-to-day interactions with their father. Although she claimed that she would allow the boys to talk on the phone with their father several times per week and spend their summer vacations with him, the psychologist was skeptical. Based on the mother's past behavior, there was a strong probability that she would not be supportive of the boys' tenuous relationship with their father. If she were not supportive, the boys would suffer a significant loss. Therefore, he concluded that the move to Ohio would be detrimental to the children's welfare and that Mr. LaMusga should be awarded physical custody. The judge agreed and transferred custody to Mr. LaMusga.
The mother appealed this decision to the California Court of Appeals. The court reversed the trial court, ruling that the judge had abused his discretion by failing to take into account evidence that favored the mother and by placing undue weight on the detriment that the move would have on the children's relationship with their father. The California Supreme Court agreed to hear the father's appeal, and while it was pending the mother informed the court that she no longer intended to move to Ohio but that she wanted to move to Arizona. In addition, she asked that the appeal be dismissed because of these changes in circumstances. The court refused, noting that she could change her mind again in the future and seek a move to Ohio.
The California Supreme Court reversed the appellate court's decision. Justice Carlos Moreno, in his majority opinion, concluded that the trial judge had not abused his discretion in assessing the best interests of the children. Justice Moreno noted that the California appeals courts had disagreed on the factors that should be taken into account when deciding whether to modify a custody order when a custodial parent seeks to change the residence of the children. He laid part of the blame for these conflicting decisions at the feet of his own court, which had failed to be precise in its rulings. Therefore, Justice Moreno stated that when trial courts examine such custody issues they must examine a host of factors. These included the children's interest in stability and continuity of the custodial arrangement, the age of the children, their relationship with both parents, the distance of the proposed move, the reason for the proposed move, the relationship between the parents and their commitment to the best interests of the children, and the wishes of the children if they are mature enough to weigh the issue. Each decision had to be made on the particular facts of the case and had to be grounded on the best interests of the children.
Custody
CUSTODY
The care, possession, and control of a thing or person. The retention, inspection, guarding, maintenance, or security of a thing within the immediate care and control of the person to whom it is committed. The detention of a person by lawful authority or process.
For example, in a bailment, the bailee has custody of goods delivered to him or her in trust for the execution of a special object upon such goods.
The term is flexible and may mean actual imprisonment or the mere power—legal or physical—of imprisoning or assuming manual possession. A petitioner must be "in custody" to be entitled to habeas corpus relief, which provides for release from unlawful confinement in violation of constitutional rights. Custody in this context is synonymous with restraint of liberty and does not necessarily mean actual physical imprisonment. Persons who are on probation or who are released on their own recognizance are "in custody" for purposes of habeas corpus proceedings.
child custody, which encompasses the care, control, guardianship, and maintenance of a child, may be awarded to one of the parents in a divorce or separation proceeding. Joint custody is an emerging concept that involves the apportionment of custody between the parents during specified periods of time. For example, a child may reside with each parent for six months each year.
Jurisdiction of courts over custody disputes has been heavily litigated, especially in child-custody cases. In the past, some parents sought to obtain custody over their children by removing them from one state, then seeking to obtain custody through a decree in another state. The federal and state governments have sought to prevent this occurrence through the enactment of a series of statutes. In 1967, the commissioners on uniform laws approved the Uniform Child Custody Jurisdiction Act, which was eventually adopted in every state. The act provides that a state court will not accept a custody case unless it has original jurisdiction or unless the state with original jurisdiction relinquishes it. The Commissioners on Uniform Laws updated the law in 1997 with the approval of the Uniform Child Custody Jurisdiction and Enforcement Act, which more than 30 states have adopted. Congress has enacted similar legislation, including the Parental kidnapping Prevention Act (28 U.S.C.A. § 1738A [Supp. 2003]). That statute requires that a state give full faith and credit to another state's custody order.
The jurisdiction of federal courts over custody of aliens has also become a significant issue with the enactment of several anti-terrorism statutes since the late 1990s. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996), both of which removed much of the power from federal courts to review cases involving immigrants who are held in custody for certain crimes. Several legal commentators criticized the application of these statutes due to their limitation of the habeas corpus rights that traditionally are extended to aliens. Commentators have similarly raised questions with respect to orders issued by President george w. bush, which limit the ability of federal courts to review cases of suspected terrorists who are held in custody.
custody
cus·to·dy / ˈkəstədē/ • n. the protective care or guardianship of someone or something: the property was placed in the custody of a trustee. ∎ imprisonment: my father was being taken into custody. ∎ Law parental responsibility, esp. as allocated to one of two divorcing parents: he was trying to get custody of their child.DERIVATIVES: cus·to·di·al / ˌkəˈstōdēəl/ adj.
custody
Hence custodian XVIII.