The body of law relating to marriage consists of the general law, customary law and personal law. Tamils are governed by the general law in most marriage-related matters, whereas Kandyan Sinhalese can choose to be governed by the general law or their customary laws. Muslims are governed by Muslim personal law.
The 1907 Marriage Registration Ordinance constitutes the general law on marriage in Sri Lanka. The ordinance applies to marriage between Tamils and between individuals of differing ethic and religious communities. Kandyan Sinhalese may choose to be governed by the general law or Kandyan law. The ordinance does not govern marriages contracted between Muslims.
Pursuant to a 1995 amendment to the ordinance, the minimum age of marriage was raised to 18 for both men and women. A subsequent provision, however, authorizes parents to consent to a marriage involving a minor. If a parent unreasonably withholds consent, a court may authorize the marriage. Courts have held, however, that a parent's refusal to give consent will only be overruled if the court is satis- fied that the refusal is without cause and contrary to the interest of the minor. Despite the requirement of parental consent for a minor to marry, the ordinance provides that lack of proof of such consent does not render invalid marriages registered under the ordinance. This exception does not apply to customary marriages because such marriages would not have satisfied the registration requirement. However, courts have held in cases of unregistered marriages as well that want of consent would not invalidate such a marriage after it had been consummated.
The ordinance renders marriage between two individuals within prohibited degrees of kinship void. Marriage or cohabitation between such parties is punishable with imprisonment.
Provisions in the penal code regarding incest further enhance the penalty for such marriages.
The ordinance prohibits polygamy.
Registration of marriages is not mandatory under the ordinance. An entry made in the marriage register is simply the "best evidence" of the marriage. Thus, customary marriages, including those solemnized according to Hindu, Buddhist and Christian rites and rituals, have been accepted as valid despite the fact that they are unregistered. The law recognizes a rebuttable presumption of marriage by habit and repute. Thus, upon proof that a man and woman have cohabited as husband and wife, the law presumes that they are living together in a valid marriage, unless the contrary is proved. Courts have emphasized that cohabitation does not conclusively prove the fact of marriage, thus emphasizing the rebuttable nature of the presumption.
BINNA, DIGA MARRIAGES
Whether the marriage is binna or diga depends on the intention of the parties. A marriage is presumed to be diga if there is no evidence as to its character. The act specifies that a valid Kandyan marriage renders legitimate any children born to the parties prior to such a marriage. This means that any premarital offspring are automatically legitimized if the parents subsequently enter into a valid Kandyan marriage. Children so legitimized are entitled to the same rights as those born subsequent to a marriage.
RELEVANT LAWS AND POLICIES
MUSLIM MARRIAGE AND DIVORCE ACT
The Muslim Marriage and Divorce Act governs marriage between Muslim parties. The act specifies some requirements for a valid marriage; those requirements left unspecified are governed by the law of the sect to which the parties belong. The act does not specify a minimum age for valid marriage.
However, where a marriage involves a girl below age 12, the act requires consent of the Quazi (similar to a judicial officer, though legal training is not required) to register the marriage.
Also,under Islamic law,a minor girl has the right to repudiate the marriage upon attaining puberty. Although courts have recognized this right, the issue of whether it is an unconditional right or available only when the marriage can be proved to be against the child's interest remains open to debate. Furthermore, under the penal code, sexual intercourse with one's wife who is under age 12 constitutes rape, though this provision has not been consistently applied by the courts.
In Muslim law,prohibited relationships in marriage include affinity,consanguinity and fosterage (i.e.,if a woman has suckled another's child, that child cannot contract a marriage with the woman or her natural children).
The Muslim Marriage and Divorce Act requires the consent of a wali (guardian) to the marriage for women of the Shafi sect, though the Quazi may dispense with the consent requirement if it is unreasonably withheld.
The act also requires that the wali communicate the bride's consent to the marriage to the Quazi, though it does not provide for a mechanism to actually manifest such Consent.
A woman of the Hanafi sect is permitted to enter into a marriage contract on her own, as she is freed from guardianship upon attaining puberty. Polygamy is permitted under the Muslim Marriage and Divorce Act. The act imposes an obligation on the husband to give notice to the Quazi of his intention to contract a subsequent marriage.
Courts have stressed that co-wives must receive equal treatment in relation to material goods, though the Quazi have no duty to determine the actual ability of the husband to provide for his wives equally and justly.
In an attempt to curb the practice of non-Muslim males converting to Islam merely to circumvent stringent divorce laws under the general law, a 1998 landmark Supreme Court decision held that a second marriage upon such conversion would be void, unless the first marriage was legally dissolved.
Non-registration of a marriage does not affect validity under the Muslim Marriage and Divorce Act.
However, the act does impose a duty to register a marriage on specified persons, the failure of which constitutes an offense.484
LAWS GOVERNING TAMILS
The Marriage Registration Ordinance governs marriage among Tamils.
The Marriage Registration Ordinance and the Civil Procedure
Code constitute the general law on divorce.485 The provisions of the ordinance
firmly establish divorce as faultbased and case law has reaffirmed this concept.
Grounds for divorce under the ordinance are the following:
Cruelty is not a ground for divorce, although it may be a
factor in determining malicious desertion. Physical illtreatment per se is also
not a ground for divorce under the general law, but it is a cause for legal
separation. In cases of adultery,courts have required proof beyond reasonable
doubt as the standard of proof;they also have required the specification of the
date and place of the act. An aggrieved spouse may recover damages from the
person with whom adultery is committed. Malicious desertion has been judicially
defined as "the deliberate and unconscientious,definite and final repudiation of
the obligations of the marriage state … and it clearly implies something in the
nature of a wicked mind." The intent to terminate the marital relationship and
the actual termination of cohabitation are both necessary elements. The law also
recognizes constructive desertion,whereby the innocent spouse is forced to leave
because of the behavior of the other spouse.
In addition to the grounds for divorce under the Marriage Registration Ordinance, the Civil Procedure Code permits either spouse to petition for dissolution of marriage two years from the date of a decree of judicial separation or, notwithstanding such decree,where there has been a separation a mensa et thoro (from bed and board) for seven years.492 However, courts have not been consistent in applying this provision,and the current law holds that separation alone is an insufficient ground for divorce.493 The general law on divorce as it stands is thus firmly fault based. However, the law is currently under scrutiny and a draft Matrimonial Causes Act, which explicitly introduces irretrievable breakdown of marriage as a new ground of divorce, is under consideration.
LAWS GOVERNING KANDYAN SINHALESE
Persons subject to Kandyan law may be married under the Marriage Registration Ordinance or the 1952 Kandyan Marriage and Divorce Act.
Pursuant to a 1995 amendment to the Kandyan Marriage and Divorce Act, the minimum age of marriage was raised to 18 for both sexes. Marriages in violation of this age requirement are void unless the parties cohabit as husband and wife for one year after attaining the legal age, or if a child is born within marriage before either party has attained the legal age. The act prohibits marriage between certain closely related individuals. It renders a second marriage invalid if the first is not legally dissolved. As opposed to the general law's lack of a registration requirement, registration is a crucial aspect of the act. The consequences flowing from a Kandyan marriage depend on whether the marriage is contracted in diga or binna. In a diga marriage, which derives from a patriarchal system, the bridegroom brings his bride to his own house or that of his parents,and she becomes a member of his family for the duration of the marriage.466 In a binna marriage, which is perhaps older in origin and derives from a matriarchal system, the husband is brought to the house of his wife or her family.
The Kandyan Marriage and Divorce Act governs divorce among only those Kandyans married under the act. The act recognizes some differing grounds of divorce for men and women. Divorce may be sought on the following grounds:
Under the act, an application for divorce is made to the district registrar,who may use discretion in granting or refusing to grant the divorce. The Marriage Registration Ordinance governs divorce between Kandyans who choose to be married under the general law.
LAWS GOVERNING MUSLIMS
Muslim personal law recognizes different grounds of divorce for the husband and the wife; spouses do not have equal rights to divorce. It also recognizes grounds for divorce on fault- and non-fault-based grounds. The rights and duties of the parties are determined according to the sect to which the person belongs.
Divorce by the husband is known as talak. This is the "repudiation of the marital tie by the unilateral act of the husband," by making a pronouncement that the marriage is dissolved.
The husband may pronounce talak without following any prescribed judicial procedures.
Furthermore, the pronouncement need not be made in the presence of or communicated to the wife.
The board of Quazis and the Supreme Court share the view that pronouncement of talak need not be communicated to the wife.
The Muslim Marriage and Divorce Act specifies the procedure in the event of divorce by the husband. These rules are comparable to the most progressive legislation on talak in the Muslim world.
A significant feature of the procedure is the duty of the Quazi, who receives notice of the intention to pronounce talak, to attempt to reconcile the parties with the assistance of relatives and elders of the community.
Divorce by the wife is known as fasah divorce in Muslim law, and although the term is not used in Sri Lanka,the Muslim Marriage and Divorce Act recognizes the right of the wife to divorce on the grounds identified with fasah divorce.
The availability and scope of fasah divorce depends on the sect to which the parties belong.
Maliki law, which applies to the Maliki sect, is the most liberal in this regard.
The grounds available to the wife for fasah divorce include:
Divorce on the ground of ill-treatment includes mental
ill-treatment as well as slanderous and false accusations of adultery.
Courts have also noted that in assessing cruelty, factors such as social conditions and actual life circumstances will be considered.
The most common grounds upon which fasah divorce is sought are failure to maintain and desertion.
In fasah divorce, the Quazi must serve notice of the hearing for divorce on the husband.
The wife's evidence must be corroborated by at least two witnesses,the failure of which may be fatal to the case.
Divorce is granted only after the maximum efforts at reconciliation have failed.
Other forms of divorce under Muslim personal law include khula and mubarat. The former is initiated by the wife and generally involves a monetary payment by the wife to the husband for her release from the marriage; the return of the woman's mahr is usually considered sufficient.
The mubarat form of divorce is based on mutual consent and does not require such payment to the husband.
A woman who has been falsely accused of adultery by her husband has the right to a form of divorce called lian. However, if at a hearing the husband rescinds his statement, lian is no longer available.
LAWS GOVERNING TAMILS
The Marriage Registration Ordinance and the Civil Procedure Code apply to Tamils in matters of divorce.
The Civil Procedure Code constitutes the general law on judicial separation. The code provides that either party may petition for separation "on any ground on which by the law applicable to Sri Lanka such separation may be granted." Thus, Roman-Dutch law grounds for separation are applicable, the essential feature of which is proof that further cohabitation has become dangerous or intolerable due to unlawful conduct by the defendant.
Laws governing Kandyan Sinhalese The Kandyan Marriage and Divorce Act does not include judicial separation as matrimonial remedy. However, Kandyan Sinhalese married under the general law may seek judicial separation under the Civil Procedure Code.Laws governing Muslims The concept of judicial separation does not exist under Muslim law.
Laws governing Tamils The Civil Procedure Code applies to Tamils in matters of judicial separation.
MAINTENANCE AND SUPPORT LAWS
The 1999 Maintenance Act is the general law on maintenance
Instituting proceedings under the act does not preclude a person from also initiating a civil action for maintenance,in which case common law principles of maintenance would apply.
The act requires any spouse with sufficient means to maintain the other spouse, if such individual is unable to maintain him or herself.
The law in place prior to the act imposed a duty of maintenance only on a husband.
An order for maintenance will not be awarded if the applicant spouse is living in adultery or both spouses are living separately by mutual consent.
This constitutes a departure from the common law, which provides that the obligation of support continues during a period of consensual separation.
In cases where a wife is precluded from receiving an award for maintenance under the Maintenance Act, she may still bring a civil action to enforce her husband's common law obligation of support for her personal necessaries.
The Maintenance Act also imposes a duty on a parent to provide for the maintenance of all minor children, needy adult offspring (ages 18-25) and disabled offspring.
The Civil Procedure Code recognizes the right of either spouse to enforce the other's obligation of support while an action for divorce is pending.
The primary objective of the action is to enable the spouse in need to live without hardship during the litigation, and proceed with the action.
The applicant-spouse need only prove financial need and the other spouse's ability to provide the required support.
On the dissolution of marriage, courts have broad
discretionary powers regarding maintenance awards under the Civil Procedure
Code. A court may issue any order it thinks fit with regard to conveyances of
property or monetary payments of maintenance for the benefit of either spouse.
Laws governing Kandyan Sinhalese The Maintenance Act applies to Kandyans in matters of maintenance obligations during marriage. The Kandyan Marriage and Divorce Act includes provisions on maintenance in cases of divorce. The act provides that a district registrar, in granting the dissolution of a marriage,may order the husband to pay a certain amount of money or provide other support for the maintenance of his wife, children or both. The act does not stipulate what factors the registrar should take into account in making the award, although such factors generally include the husband's ability to pay,the wife's needs, the degree of fault attributed to each party,the duration of the marriage, and the couple's standard of living.
Laws governing Muslims The Muslim Marriage and Divorce Act provides that any claim for maintenance by or on behalf of a wife, legitimate child or illegitimate child (where both parents are Muslims) falls within the exclusive jurisdiction of the Quazi. The act does not specify the principles pertaining to maintenance; instead, it provides that the law of the sect to which the parties belong should apply.
A Muslim woman's right to maintenance during marriage is derived from the concept of nafaqa,which encompasses the provision of basic needs such as food, clothing and accommodation to the wife. In contrast to the Maintenance Act, the husband has the primary obligation of providing support and a wife's own financial means are irrelevant in determining her claim for maintenance. Maintenance after divorce is not recognized under Muslim personal law. However, the Muslim Marriage and Divorce Act provides three situations in which a divorced wife may claim maintenance:
_ until registration of the divorce;
_ during iddat (the period of time that a divorced wife must remain unmarried); and
_ if such woman is pregnant at the time of registration of the divorce, until she delivers the child.540 Laws governing Tamils No data is available on maintenance and support laws governing Tamils.
CUSTODY AND ADOPTION LAWS
The general law regarding custody in Sri Lanka has received little legislative attention. Those laws that do exist do not address the substantive rights of parents and deal primarily with the procedural aspects of custody cases. The principles of custody are thus governed by the residuary Roman-Dutch law. The predominant feature of the common law is the preferential custodial right given to the father,which may be denied only in instances of danger to the "life, health and morals" of the children.
A mother who seeks custody therefore has the onus of displacing the father's right. It should be noted that the general law principles of fault-based divorce have carried over into the area of custody, tipping the scale in favor of the innocent spouse. However, case law has reiterated that the paramount concern in determining custody is the child's welfare.
There is lack of guidance, statutory or otherwise, with regard to what criteria should be considered in determining the best interests of the child. Courts have in the past emphasized the "Asiatic" value system, giving primacy to maintaining family links over enhancing the mental health of the child. Recently, however, courts have also considered the child's sense of security as a factor.
Children Ordinance, which provides that adoption will only be permitted for the "welfare of the child." The ordinance also takes into consideration the adoptee's wishes according to the child's age and level of understanding. The ordinance was amended in 1992 to put an end to the commercialization of adoption by intermediaries who facilitate the adoption of young Sri Lankan children by foreign parents from highincome countries. The amendments prohibit giving or receiving payments as consideration for an adoption,and provide that a child may be considered for adoption by a foreign family only if no local family is available to adopt the child.
Laws governing Muslims
Under Muslim personal law, the mother has preferential custodial rights to minor children. The duration of this right differs among sects and is also affected by the gender and age of the child in question. Under Shafi law, a female child remains with the mother until she marries, whereas under Hanafi law, custody is with the mother only until the girl reaches puberty. Custody of male children in both Shafi and Hanafi sects is with the mother until the child reaches age seven. Under Shafi law, the boy may choose which parent to live with after age seven until puberty. Under Hanafi law, custody automatically passes to the father after the age of seven. Upon the mother's death or a determination of her unsuitability, custody devolves to the maternal relatives. Despite a mother's preferential custodial rights, a father's guardianship rights include the rights to visit the child,supervise upbringing, act as a marriage guardian, and control and manage the child's property. A mother may lose her preferential rights in special circumstances, which include the following events:
Despite the jurisdiction of Quazi courts in the Muslim legal
system, ordinary courts have exercised jurisdiction in custody matters. In this
way, they have modified some principles of Muslim law on the basis of the
"welfare of the child" standard derived from the general law. The Supreme Court
has held that although it would consider preferential rights in customary laws,
such rights are not conclusive in custody determinations. In departing from
Muslim law,courts have recognized exceptions, based on the welfare of the child,
to the principle that the mother loses custody upon remarriage to a nonrelative
of the child.
These exceptions are:
ECONOMIC AND SOCIAL RIGHTS
Roman-Dutch law forms the bedrock of the general law on property in Sri Lanka. The 1923 Married Women's Property Ordinance constitutes the general law on matrimonial property rights. Under the ordinance, a married woman is capable of holding, acquiring and disposing of any movable or immovable property or of contracting as if she were a femme sole, without the consent or intervention of her husband. This applies to all property belonging to her at the time of marriage and property acquired or devolved to her after marriage. She also has the same remedies and redress by way of criminal proceedings for the protection and security of her separate property. The 1876 Matrimonial Rights and Inheritance Ordinance constitutes the general law on inheritance rights. The ordinance provides for equal rights to inheritance for male and female spouses:upon the death of either spouse,the surviving spouse inherits half of the deceased spouse's property. The extent of the general law's application has been limited by legislation, judicial decisions and the system of customary laws that are operative in the island. The matrimonial property and inheritance rights of Kandyan Sinhalese and Tamils are governed by their own systems. Muslims are governed by Muslim personal law.
Laws governing Kandyan Sinhalese
The 1938 Kandyan Law Ordinance as amended, commonly known as the Kandyan Law Declaration and Amendment Ordinance, applies to Kandyan Sinhalese in property matters. Women do not have equal intestate rights with men under Kandyan law.
Under the ordinance,legitimate sons and daughters inherit their parents' property in equal shares, although a daughter who marries in diga after the death of her father must transfer any immovable property she inherited from him to her brothers or binna-married sisters, upon their request for such property. (See "Marriage laws"for information on diga and binna forms of marriage.)
Laws governing Muslims
Under Muslim law,women are capable of independently acquiring, holding and dealing with property. The 1931 Muslim Intestate Succession Ordinance applies to Muslims in inheritance matters. The ordinance provides that the applicable law is that of the sect to which the party belongs. With respect to almost all sects, female heirs inherit a lesser share than male heirs of the same degree of relationship to the decedent. A widow inherits half the portion that a widower would inherit. The mother of a decedent is entitled to half of the share of the father of the decedent. Although daughters are not excluded from inheritance, their rights are diminished when sons are also present to inherit the property. Laws governing Tamils
The 1911 Matrimonial Rights and Inheritance (Jaffna) Ordinance applies to Tamils in property matters. Under the ordinance,movable or immovable property a woman acquires during or before marriage remains her separate property after marriage. A woman has the power to deal with her movable property during her lifetime without the consent of her husband. However, a married woman may deal with or dispose of any immovable property to which she is entitled at the time of marriage or acquires as her separate estate during marriage only with the written consent of her husband, except in the case of last wills. The ordinance provides several instances where such consent could be waived, including:
Property acquired by either spouse during marriage using the
couple's shared funds or estate is called thediatheddam. The underlying concept
of thediatheddam is that both spouses are equally entitled to the property from
the moment of acquisition. An undivided half-share of thediatheddam vests
automatically in the non-acquiring spouse. Although a husband cannot donate the
wife's share of thediatheddam under any circumstances, he may sell or mortgage
it for consideration. If either spouse dies intestate, the surviving spouse's
share of thediatheddam remains his or her property. Under an amendment to the
ordinance, half of the deceased's share devolves to the surviving spouse,
resulting in ownership of three-fourths of thediatheddam by the surviving
spouse. The other half of the deceased's share devolves to his or her heirs.
The ordinance provides that Tesawalamai law ceases to apply to a Tamil woman during the course of her marriage to a foreign man, but the law applies to both husband and wife in cases of marriage between a Tamil man and a foreign woman. Rights to agricultural land The 1935 Land Development Ordinance as amended provides for the distribution of land to landless farmers and enables such farmers to ultimately acquire absolute title to land initially granted to them under a permit.
The ordinance entitles the surviving spouse of a deceased permit holder to succeed to the alienated land and possess it under the terms and conditions of the permit.
The surviving spouse has this right even if she or he has not been nominated by the original permit-holder to be the successor, provided that she or he does not remarry.
Upon the remarriage of a spouse who
was not nominated as the successor, the land devolves to the person who was
nominated by the deceased or, if no person has been nominated, according to the
third schedule of the ordinance.
The third schedule of the ordinance, which lists the order of inheritance, gives precedence to the male heir over the corresponding female heir.
Draft amendments to discriminatory provisions in the Land Development Ordinance are currently being considered.
includes not only parents who have been abusive, neglectful, or convicted serious crimes, but also parents who failed support their children and have regular contact with them.
Unrelated adoptions (in which the person adopting the child is not related to the child or to the child’s other parent) usually require more paperwork and more time to complete. Unrelated adoptions generally are of one of two types: an agency adoption or a private adoption.
Private adoptions bypass the use of agencies, and they may help bypass the long waiting lists as well. Private adoptions are available in most states, but not all. The process of private adoptions may begin when people who seek to adopt a child contact an attorney who specializes in adoptions. The attorney may work with physicians who are aware of women willing to give up children for adoption. Sometimes would-be parents will place ads in newspapers seeking women who are willing to place their babies for adoption. The ads might be placed by the adoptive parents directly or the ads might be placed by their attorney. In most states, adoptive parents are allowed to pay a biological mother's medical expenses and certain other costs during the pregnancy. But adoptive parents are not allowed to pay the biological mother specifically to give up the child. The law treats this as a “black market adoption”--the buying and selling of children--and it's a crime in every state. Court procedures vary from state to state, but in all states court approval is necessary for both agency and private adoptions. Many states also require that the adoptive parents be approved by a social service agency. Private adoptions are more complicated than unrelated adoptions. It is very important that proper consent be obtained from the biological parents. (That issue is discussed in the next two sections.) Assistance from an attorney in the state in which he adoption will take place is advisable.
The biological mother must
consent to the adoption or her parental rights must have been terminated for
other reasons such as abuse or neglect of the child. It is common for biological
mothers who are planning to give up their children to sign a consent form before
the child is born. The initial consent form, however, is not binding. The mother
has the right to revoke her consent for a certain period of time after the child
is born. In most states, that time period is relatively short, such as 48 to 72
hours, although some states may allow a longer period in which
Biological father's consent.
BE SURE THE FATHER CONSENTS
The court’s decision caused an uproar in Illinois. The governor and many legislators objected to the decision. Although feeling some sympathy for the biological father who was deceived about the birth of his son, many people felt the rights of the child and adoptive parents should be paramount. The legislature passed a statute requiring courts to consider the best interest of a child when deciding whether to rescind an adoption. The Illinois Supreme Court refused to apply the statute to Richard’s case and still ordered that Richard be returned to the biological father. The case of Baby Richard illustrates the importance of obtaining consent of the biological father in order to help insure the adoption will not be undone. If a father who is not notified of his child’s existence contests the adoption within the time period designated by state law, the adoptive parents might lose custody of the child. Many states are considering laws that would give greater protection to the adoptive parents and to adoptive children who have bonded with their adoptive parents; but in the meantime, many states place more emphasis on the rights of the biological father than the interests of the child or adoptive parents.
OTHER ADOPTION ISSUES
As with adoptions sought by a couple, a single person who seeks to adopt a child must be approved by a social service investigator and show that appropriate arrangements have been made for care of the child.
Adoption by lesbian or gay couples.
viewed as an impermissible assertion of rights that no longer exist. On the other hand, if the adoptive parents had agreed to contact with the biological parent and the adoption was contingent on such contact, the agreement might be enforceable. A biological parent should not count on such agreements being enforceable unless state law clearly says so.
In most states, a court’s adoption records are sealed and can be opened only by court order. Procedures and standards for opening records vary by state. Increasingly, states require that certain non-identifying information, such as the medical history of the biological family, be made available to the adoptive parents at the time of adoption. Some states have registries where parties to the adoption can seek to contact each other. If, for example, a biological mother seeks to find out about her child she may place her name, address, and telephone number with the registry. If the adopted child (or adoptive parent) seeks contact with the biological parents, they may place their names in the registry. If a registry official determines there is a “match” of people seeking information about each other, the registry will provide information to facilitate the contact. Oregon has a law that allows adopted children to obtain their adoption records even if the biological parent expected their identity would not be revealed at the time the adoption took place.
Legal Action for “Wrongful Adoption”
A lawsuit for such damages sometimes is referred to as an action for wrongful adoption. In one case, for example, an agency withheld information about the biological mother’s mental illness and institutionalization. As the child grew, the parents realized the child had a severe mental illness requiring substantial amounts of treatment. The adoptive parents were able to collect damages for the cost of treatment and for their own emotional suffering.
Custody and Visitation
Evolution of Custody Standards
Preferences for Mothers or Fathers
Under the current law of almost
all states, mothers and fathers have an equal right to custody. Courts are not
supposed to assume that a child is automatically better off with the mother or
In many jurisdictions, it is
possible to obtain a change of judge by asking for it. Such a change often is
called a change of venue . Generally, a litigant is entitled to one
change of venue without having to present a reason. The request, however, must
be made before the judge has ruled on substantive issues in the case. If one is
faced with a judge one suspects of bias, a change
If a case is transferred to a judge who the litigant or the attorney does not like, it will be difficult to obtain a second change of venue. Courts to not wish to allow parties to keep bouncing cases between judges. Courts usually are unwilling to order a second change of venue unless there is a clear, specific showing of prejudice by the judge to whom the case has been transferred. If a parent is before a judge who is believed to be biased (and a change of venue cannot be obtained), the parent just puts on the strongest case possible and hopes for the best.
As a group, judges are less biased in deciding custody cases today than in times past, although many observers believe bias still exists.
Possible prejudice in favor of mothers.
Judges, based on their background or personal experience, may have a deep-seated
belief that mothers can take care of children better than fathers and that
fathers have little experience in parenting. Such judges may carry those views
A Louisiana case illustrates
the point. The trial judge gave custody to the mother saying, “It is just a
physiological fact that girl children should be with their mother if there are
no serious differences.” Since the trial judge’s bias was clear on the record,
the appellate court reversed the
In cases in which the trial
judge is less explicit about his or her prejudice, it may be more
Some judges tend to automatically favor fathers, particularly if the children are boys. In an Iowa case, for example, a trial judge gave custody of two boys, ages nine and eleven, to the father, saying that the father “will be able to engage in various activities with boys, such as athletic events, fishing, hunting, mechanical training and other activities boys are interested in.” The trouble was that the testimony before the before court did not support the judge’s presumption. The record in the case did not show that the boys were interested in hunting or mechanical training or that the father’s skills in those areas were superior to the mother’s. In fact, the mother went fishing with the boys more often than the father.
The Iowa Supreme Court reversed and gave custody to the mother who had been primarily responsible for raising the children. The court said, “The real issue is not the sex of the parent but which parent will do better in raising the children. It logically follows that neither parent has an edge based on the sex of the children either.”
Another possible prejudice in favor of fathers may be regarded as a prejudice against working mothers. In some cases, it appears that judges have looked askance at working mothers, perhaps holding mothers to a higher standard than fathers and viewing a working mother as not serving the best interest of her child. Such judges also may view a father who shows slightlyabove- average involvement in parenting as “exceptional” and reward him with custody. It is difficult to assess how widespread this view may be among judges. Some commentators assert that bias against working mothers, especially professional women, may be a significant factor. Others suggest that a review of appellate court cases does not disclose widespread prejudice against working mothers, although it exists to some degree. If anything, most judges seem to admire a mother (or father) who can simultaneously manage work and raising children.
A parent’s work schedule normally is not a decisive factor in custody, unless there is a major difference in the amount of time each parent can spend with the child. If after a divorce, one parent will be able to spend much more time with the child than the other parent, that is a factor in favor of the parent with the more flexible schedule.
If neither parent has engaged in unusually bad conduct, the most important factor often is which parent has been primarily responsible for taking care of the child on a day-to-day basis. Some states refer to this as “the primary caretaker factor.” If one parent can show that he or she took care of the child most of the time, that parent usually will be favored for custody, particularly if the child is young (under approximately eight years old). Use of this factor promotes continuity in the child’s life and gives custody of the child to the more experienced parent who has taken care of the child’s day-to-day needs. If both parents have actively cared for the child or if the child is older, the factor is less crucial, although it is still considered.
The wishes of a child can be an
important factor in deciding custody. The weight a court gives the child’s
wishes will depend on the child’s age, maturity, and quality of reasons. Some
A court is more likely to follow the preferences of an older child, although the court will want to assess the quality of the child’s reasons. If a child wants to be with the parent who offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached also may not have his or her preferences followed. On the other hand, if a child expresses a good reason related to the child’s best interest-- such as genuinely feeling closer one parent than the other--the court probably will follow the preference. Although most states treat a child’s wishes as only one factor to be considered, two states (Georgia and West Virginia) declare that a child of fourteen has an "absolute right" to choose the parent with whom the child will live, as long as the parent is fit.
If a judge decides to talk with the child, the judge usually will do so in private--in the judge’s chambers rather than in open court. Generally, the parents are not in the room when the judge talks to the child, although the parents’ attorneys might be. In some cases, the judge may appoint a mental health professional, such as a psychiatrist, psychologist, or social worker, to talk to the child and report to the court.
Nonmarital Sexual Relationships
The impact of a parent’s
nonmarital sexual relationships on a custody determination depends on
If, for example, one parent has had a discreet affair during the marriage, that normally would not be a significant factor in deciding custody. Similarly, if after the marriage is over, a parent lives with a person to whom he or she is not married, the live-in relationship by itself normally is not a major factor in deciding custody. In the case of live-in relationships, the quality of the relationship between the child and the live-in partner can be an important factor in a custody dispute.
If the parent’s non-marital
sexual relationship or relationships have placed the child in embarrassing
situations or caused significant stress to the child, then the relationship
would be a
Although most states require a specific showing of harm to the child before nonmarital sexual conduct is considered, courts in a few states are more inclined to automatically assume that a parent’s nonmarital sexual relationship is harmful to the child or will be harmful to the child. As with the issue of a preference for mothers or fathers in custody cases, the issue of a parent’s sexual conduct can be one in which individual judges may have personal biases that influence their decisions.
The impact of a parent’s
homosexual relationships on custody decisions varies dramatically from
A homosexual parent (or a heterosexual parent) seeking custody will have a stronger case if he or she presents evidence that the child does not witness sexual contact between the partners and that the child likes the parent’s partner.
Undermining Child’s Relationship with Other Parent
Under the First Amendment to
the United States Constitution, both parents have a right to practice religion
or not practice religion as they see fit. A judge is not supposed to make value
judgments about whether a child is better off with or without religious training
or about which religion is better. If a child has been brought up with
particular religious beliefs and religious activities are important to the
child, a court might favor promoting continuity in the child’s life,
A child’s preference to live with the noncustodial parent can be a basis for modifying custody, but the child’s reasons must be well-based and not appear to be the result of coaching or bribery.
In one case, a father was trying to gain custody of his thirteen-year-old son. In the days before the custody hearing, the father presented his son with a series of gifts reminiscent of the song “The Twelve Days of Christmas”. Among the acquisitions of the boy: a horse, two television sets, a minibike, a shotgun, a motorcycle, and a private telephone. The father did not gain custody.
In addition to showing a change in circumstances, the parent seeking a change of custody must show that he or she can provide a better environment for the child than the child’s current environment.
In order to discourage parents from constantly litigating custody, some states apply a special standard for custody modifications sought within the first year or two after a prior custody order. In those states, the parent must show not only a change of circumstances, but also that the child is endangered by the child’s current environment. After expiration of the one- or two-year period, the courts apply normal standards for modification (without having to show endangerment).
If parents voluntarily wish to change custody or the visitation schedule (see below), they may do so without having to prove special factors such as endangerment or a change in circumstances. Parents may change custody and visitation without obtaining a court order, but if the parent receiving custody or more visitation wants to make the modification "official”—thus making it more difficult for the other parent to go back to the old system--it is best to obtain a court order modifying custody and visitation. In addition, an informal change of custody will not necessarily stop a parent’s support obligation--only a court order can provide certainty of that.
A parent who does not receive
custody normally is entitled to visitation with the child. The amount of
visitation will vary with the desires of the parents and the inclinations of the
A court can deny or restrict visitation if the court believes the child might be placed in danger by the visitation. For example, if the noncustodial parent has molested the child, is likely to kidnap the child, or is likely to use illegal drugs or excessive amounts of alcohol while caring for the child, a court probably will deny visitation or restrict visitation. If visitation is restricted, visitation might be allowed only under supervision, such as at a social service agency or in the company of a responsible relative.
first, third, and fifth Fridays of the month)
· Lists of holidays, winter breaks, and spring breaks, perhaps using odd and even years to keep
track of which parent has which holidays in a given year
· Allocation of special school holidays and institute days (that may not be the same as legal
· Specific pick-up and drop-off times
· Designation of which parent will hold the birthday parties to which the child invites friends--
perhaps alternating years
· Periods of notice required for choosing summer vacation time with the children
· Notification of where the child will be when out of town
· Agreements for parents to try to accommodate each other if the parents must travel out of
town on business or are otherwise not able to be with the children for a designated period
· Agreements to share or provide copies of school and medical records (federal law requires
that both parents have access to school records unless a court orders otherwise)
· Agreements to notify the other parent of teacher conferences, athletic events, and other
events involving the child
· Agreements for the parents to consult with each other about what extra-curricular activities
the child will be involved in
· Agreements to make the child available for special events regardless of the custody or
visitation schedule--for example, to make the child available for family weddings, reunions,
· Agreements to allow the child telephone contact with the other parent (times and frequency
could be specified)
· Agreements to not interfere with (or to perhaps encourage) the child’s relationship with the
· Agreements to notify the other parent of change in address, telephone number, or
Many joint custody orders specify procedures parents should follow in the event they cannot agree on an issue. The most common procedure is for the parents to consult a mediator. Joint physical custody refers to the time the child spends with each parent. The amount of time is flexible. The length of time could be relatively moderate, such as every other weekend with one parent; or the amount of time could be equally divided between the parents. Parents who opt for equal time-sharing have come up with many alternatives such as: alternate two-day periods; equal division of the week; alternate weeks; alternate months; and alternate six month periods. If the child is attending school and spends a substantial amount of time with both parents, it usually is best for the child if the parents live relatively close to each other. Some parents, on an interim basis, have kept the child in a single home and the parents rotate staying in the home with the child.
In most states, joint custody is an option--just as sole custody is an option. Courts may order joint custody or sole custody according to what the judge thinks is in the best interest of the child. In some states (ten 1999), legislatures have declared a general preference for joint custody.
That means the courts are
supposed to order joint custody if one parent asks for it, unless there is
The most common reason for not ordering joint custody is the parents’ inability to cooperate. Courts are concerned that a child will be caught in the middle of a tug-of-war if joint custody is ordered for parents who do not cooperate with each other. Parents who do not cooperate also will have trouble with sole custody and visitation, but the frequency of conflicts may be somewhat less since they will need to confer less often on major decisions and the logistics of a joint physical custody arrangement.
Supporters of joint physical custody stress that it is in the best interest of the child to protect and improve the child’s relationship with both parents. They believe shared custody is the best way to make sure that the child does not “lose” a parent because of the divorce. Supporters of joint custody also argue that it is the natural right of parents to be joint custodians of their children, whether the parents are married or not.
Critics of joint custody fear that joint custody is often unworkable and worry about instability and potential conflict for the child. The success of joint physical custody may depend on the child. Some researchers have said that children who are relatively relaxed and laid back will do better with joint physical custody than children who are tense and become easily upset by changes in routine. Because joint physical custody usually requires keeping two homes for the child, joint physical custody often costs more than sole custody. Children’s needs for each parent change as they grow. Parents probably should avoid locking in any parenting plan forever. Rather, they should plan to review the custody and visitation arrangement as the children grow and the children’s needs change.
The right of a parent to move
out of state with the child is another area of law on which states are
The law in this area is shifting. Several state legislatures are considering new standards for determining when a parent can move out of state with the child. Regardless of the law in a particular state, there are several factors that courts consider when deciding whether to allow a move with the child:
with specific evidence, such as witnesses knowledgeable about the difference in school systems or medical testimony regarding the child’s health.
move like an original custody determination. The court will try to decide which parent will best meet the child’s needs. The court will consider the above factors, along with other factors usually considered in custody cases, including the child’s attachment to the current home, school, and community.
In Troxel the parents of the father sought visitation with their grandchildren following the death by suicide of the father. The mother was willing to let the grandparents have time with the grandchildren during daytime hours one day per month. The grandparents wanted weekend overnight visitation twice a month. When the grandparents did not receive the visitation they wanted, they filed suit under a Washington State law that allowed “any person” to seek visitation at “any time.” The U.S. Supreme Court found that the law was “breathtakingly broad” and did not give sufficient weight to the parent’s desires regarding how to raise her children. The Court also found that the trial judge did not give adequate reasons for granting visitation. Thus, the Supreme Court held that granting visitation to the grandparents in this case “violated [the mother’s] due process right to make decisions concerning the care, custody, and control of her daughters.”
The scope of the Supreme Court’s decision is uncertain. The Court certainly believed that parents should be given more deference on decisions with whom the child will associate than was provided by the Washington State law. The Court, however, left open the possibility that some grandparents would be entitled to obtain court-ordered visitation. Such visitation might be allowed, for example, if the grandparents can show that they had a particularly strong relationship with their grandchildren, such as perhaps when the grandparents had raised the grandchildren for a number of years before primary custody of the children returned to the parents.
At the time Troxel was
decided, statutes in all states gave grandparents a right to visit with their
grandchildren. The scope of that right varied from state to state. The typical
statute allowed grandparents to seek an order of visitation following the
separation or divorce of the parents or the death of the parent. After Troxel,
state legislatures can be expected to modify their grandparent visitation laws
to still allow grandparent visitation, but to increase the burden of proof on
grandparents who seek that visitation. Generally, an order of visitation for the
grandparents will not be necessary if the grandparents will be able to see their
grandchildren at times when the grandchildren are with their parent to whom the
grandparent is related. If, however, such contact is not feasible because the
parent does not regularly exercise visitation, then specific visitation for the
grandparents may be ordered. It is possible for grandparents to obtain custody
of grandchildren. If the parents consent to custody by the grandparents, the
grandparents may have custody on an informal basis. Alternatively, grandparents
may seek to formalize the arrangement by going to court to be named guardians of
their grandchild. Some school districts may require that a grandparent be named
guardian of the child before the grandparent may enroll the grandchild in
school. If grandparents seek custody of the grandchild over the parent’s
objection, the grandparents usually will have to show that the parents are
Rights and Duties of Stepparents