A few words might be in order regarding the difference between physical custody and legal custody, for anyone who is not familiar with the terms.
Physical custody is the right and responsibility to provide the primary residence for the child. The parent who has sole physical custody has a tremendous advantage, in that the child routinely resides with him or her, and it is the other parent (often referred to as the non-custodial parent) who only has physical control of the child during visitation periods. If a mother and father get divorced and the court orders that the children will physically reside with the mother, people often simplify explaining this by saying "she got the kids," etc.
Legal custody encompasses all other parental rights with the exception of physical custody, including all rights and responsibilities regarding making legal decisions about things such as health care, religion, education, general welfare, and rights regarding access to records such as school reports, medical records, etc. Whether a parent has physical custody or not, legal custody gives a parent the right to be informed, make decisions, and participate in these aspects.
There is a strong presumption that it is in the best interests of the child that both parents should have joint legal custody. Ordinarily, a court will order joint legal custody, unless one of the parents can show that the other parent is unfit to be involved in making any decisions regarding the child's welfare (difficult to prove), or the court finds that child abuse is involved and that legal custody for one or both of the parents would be inappropriate.
With regard to joint physical custody, courts may approve shared physical custody arrangements if the parents are amicable, cooperative, and will work together to make the joint physical custody arrangements work. Usually, the seperated parents need to reside somewhere proximate to each other such that the children can still attend the same school district and have the same social circles for stability while they are growing up. The most important factor here is the cooperation - if the parents do not fight each other, and work together to support the joint physical custody arrangements, it can work.
What is more typical, however, is an action in which the court awards joint legal custody to both parents, but sole physical custody to one parent, with the other parent just getting visitation rights, because the parties could not agree, and one or both petitioned the court to award sole physical custody to the disadvantage of the other. Facing a probable lack of cooperation between the parents, the court finds itself forced to make a choice, putting one parent over the other. Unfortunately, there does seem to be unspoken presumption (especially for younger children) that the mother is a preferred candidate for physical custody, despite the fact that each situation requires an objective and individual determination on a case by case basis. With all other factors and considerations being equal, with both parents being fit and proper persons equally equipped to provide the best physical custody, a judge will probably be more likely to award physical custody to the mother, for reasons that have more to do with long standing bias rooted in society and human nature.
Nonetheless, it should be pointed out that things are rarely so perfectly balanced, with both parents being equally equipped and poised to provide equally good physical custody, and that as a matter of statistics and probabilities there might be a real
parent gender difference at work here. Consider the following: on average, taking the population as a whole, in a seperation between a mother and a father, who is more likely to be the one who has been staying at home, raising the children, and working less than full time employment, versus the parent who is more likely to be employed full-time and spends less time with the children during the day? Although there are plenty of examples of stay-at-home dads, or dual-income earning parents who both work full-time and see the children after they return from school/day-care, we are more likely to find a stay-at-home mom with a working dad, rather than a stay-at-home dad with a working mom. Given this slight difference in probability, we might expect to find more scenarios where judges would tend to award physical custody to mothers over fathers, even if all other
factors were balanced, gender-neutral, and blind. During custody determination proceedings involving young children, a parent (regardless of sex) who has and intends to continue to work full-time is at a distinct disadvantage in a custody battle with a parent who has or intends to continue to be available throughout the day full-time for child care. If both parents are fit and one parent will be available throughout the day while the other parent is going to be working full-time with emphasis on their career, a court is not going to award sole physical custody to the career parent, and accept that the career parent is going to put the children in day care 40+ hours per week while the other parent is available to take care of them full-time.
The overriding point to be considered here, however, is that each case is different, and must be examined individually and on the merits, and that a gender preference for sole physical custody based on stereotyping alone is wrong. I would support a law that made joint physical custody mandatory in cases where both
parents agreed in court that it was in the best interests of the children, while if the parents disagreed (and thus show it is highly probable they will not cooperate in a joint physical custody arrangement), then the court should be able to make a sole physical custody determination. The court should also be required to fully explain the reasoning in a written decision as to why one parent was determined to be the best choice over the other. I do not think many judges would have a problem with this, as they make tough decisions and stand by them all the time.
I would like to address this question:What can be done to try and prevent children being used as pawns by one parent against another?
In the absolute sense of the word, as some posters previously suggested, I agree that there is nothing you can do to completely prevent it. However, I note the question is "What can be done to try
and prevent...", and there are some things you can do.
Given a scenario where one parent keeps using the children to manipulate or attempt to harass and/or frustrate the other, such as cancelling scheduled visitation for ulterior reasons or threatening to withhold visitation unless the non-custodial parent behaves as the custodial parent directs, the non-custodial parent can adopt a zero tolerance approach and resort to steady legal pressure which will not appear to make much difference in the short term but can result in big changes in the long term. Let's take the example provided by a previous poster that the custodial parent tells the non-custodial parent just before visitation that "Billy is sick" or "if you go out tomorrow night, you can't have Billy over the next day." If told that the child suddenly has a cold or is ill, the non-custodial parent should tell the custodial parent that he or she will be over at the scheduled visitation pick-up time to see the child and that they are going to verify it. That they will be gently questioning the child on how the child feels, and will bring a thermometer to check the child's temperature. If the custodial parent refuses to allow this, the non-custodial parent should inform them that they believe they are refusing in a transparent attempt to disrupt or deny visitation, and that the non-custodial will pursue legal action (more on this in a minute). Likewise, if told that the non-custodial parent can not have the regularly scheduled visitation if the non-custodial parent goes out that night (assuming that they do not get publicly drunk or otherwise impair themselves for the following day), the non-custodial parent should ignore the threat, then show up for visitation as originally planned. In either scenario, when the visitation or permission to see the child is denied, the non-custodial parent should make written notes on everything that happened (I would recommend keeping a "visitation log" in a spiral notebook), and then proceed to avail themselves of the possible civil law and criminal law options.
For example, in Illinois, there is a criminal law statute that prohibits withholding visitation, unless the withholding party can show later in court that the child was in danger of imminent physical harm. Refusing to allow the non-custodial parent to verify that the child was ill, or refusing to allow the non-custodial parent visitation if they did not follow the custodial parent's unreasonable demands, are the kinds of reasons that will cause the custodial parent to get in trouble. Here is the relevant portion of the Illinois statute:
720 ILCS 5/10-5.5 Unlawful visitation interference
(b ) Every person who, in violation of the visitation provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation shall be guilty of unlawful visitation interference.
(c ) A person committing unlawful visitation interference is guilty of a petty offense. However, any person violating this Section after 2 prior convictions of unlawful visitation interference is guilty of a Class A misdemeanor.
(d ) Any law enforcement officer who has probable cause to believe that a person has committed or is committing an act in violation of this Section shall issue to that person a notice to appear.
(e ) The notice shall: (1) be in writing; (2) state the name of the person and his address, if known; (3) set forth the nature of the offense; (4) be signed by the officer issuing the notice; and (5) request to the person to appear before a court at a certain time and place.
(f ) Upon failure of the person to appear, a summons or warrant of arrest may be issued.
(g ) It is an affirmative defense that: (1) a person or lawful custodian committed the act to protect the child from imminent physical harm, provided that the defendant's belief that there was physical harm imminent was reasonable and that the defendant's conduct in withholding visitation rights was a reasonable response to the harm believed imminent; (2) the act was committed with the mutual consent of all parties having a right to custody and visitation of the child; or (3) the act was otherwise authorized by law.
What should the non-custodial parent do when they are standing at the doorstep, and the custodial parent has just denied visitation for an arbitrary and improper reason? Step back off onto the street, finish taking notes, call the police, and have a seat in the car while waiting for them to arrive. When they do, the non-custodial parent should apprise the officers of the situation, show them a copy of the court order specifying their right to the scheduled visitation, and give them a complimentary copy of the state criminal statute making visitation interference a crime just in case the officers are not familiar with it (and to make sure the police understand that you know the law and expect them to enforce it). The officers will probably knock on the door and request that the custodial parent comply with the court order, and if they still refuse to do so, the police will then issue a citation in accordance with the statute. In Illinois, the first conviction is a petty offense, but after the third instance, it becomes a Class A misdemeanor.
Turning to the civil law remedy, the non-custodial parent who is denied visitation for arbitrary and manipulative reasons by the custodial parent can also utilize contempt proceedings against the custodial parent for violating the court order that authorized the scheduled visitation (often called a "Rule to Show Cause"). The custodial parent will then be summoned to court to answer to the judge and show why they should not be held in contempt for denying the visitation. Although the custodial parent might lie and greatly exaggerate the facts of the given specific instance of a single visitation denial in an attempt to be excused, the cumulative effect can be damning, and may even form the basis for an eventual custody challenge and a petition for change in custody to reverse the physical custody arrangements later. The reasoning behind this is that the custodial parent has a mandatory court ordered obligation to facilitate custody, and if they continually frustrate this and deny it, the court can correct this by switching physical custody to the other parent, who will be given a chance to show that they can maintain physical custody while facilitating the other parent's routine and scheduled visitation.
None of this will happen overnight or quickly, but it is worth considering when dealing with a parent who routinely frustrates or denies the non-custodial parent their scheduled visitation. The best course of action for a non-custodial parent is to keep notes and a record of every scheduled visit; always insist on going through with scheduled visitation, unless the custodial parent can show why it should be cancelled; and follow up with consistent civil and criminal legal action to make the custodial parent realize that the non-custodial parent is serious about this. A non-custodial parent in this type of situation should consult with a family law attorney in their local area to find out how their state's criminal and civil laws apply in visitation interference scenarios, and learn how to enforce their rights.