Before any dependency or divorce with children involved comes to a conclusion an order must be entered determining the custody status of children. Though these custody determinations are never considered "final" in the sense that the court maintains jurisdiction over the matter, these determinations have a lasting effect on the children, the parents and the case. Before a custody determination has been made parents enter court on equal footing and on higher ground than all other third parties that seek custody of the children. The law presumes that a parent is the best person in the world to raise their own children. This presumption is referred to as the Terry presumption. Essentially, the Terry case held that parents have a constitutional right to raise their own children. However, the law does not prefer mothers over fathers or fathers over mothers. Though litigants often feel that one party is favored there is no presumption in the law that favors one parent over another. If the court does favor one party over the other based on gender then the law has not been applied correctly. If it can be shown that one party is unfit then that determination will effect custody. The court is to be guided by the best interests of the child when making this initial custody determination.
After a custody determination has been made and the case is closed the playing field is no longer level for the parents. The custodial parent now has the high ground. If the non-custodial parent wishes to modify custody he/she must now meet a more rigid standard than the "best interests" standard. The non-custodial parent must now meet the McLendon standard. He/She must be able to show not only that it is in the best interest of the child for custody to transfer but that there has been a material change in circumstances and that the benefits of changing custody outweighs the harm that would come from uprooting the child from their current home and social environment. This standard is very difficult to satisfy. Recent cases have softened the requirement regarding the weight given to the harm of uprooting the child but the "material change in circumstances" requirement remains quite rigid. The material change in circumstances requirement is difficult to prove. For instance, in a case where children were removed from a parent based on a parent's drug addiction full rehabilitation from the same was not sufficient to show a material change in circumstances. Being better able to care for your child is not enough to satisfy this higher standard. Further, if a parent loses custody to a non-parent and a case closes that parent also loses the Terry presumption discussed above.
The point is that a parent must fight tooth and nail to maintain custody of their children. If they can help it they should not allow a case to close with any thing less than true joint physical custody. Anything less will cause that parent to have to fight an uphill battle to regain custody.
After a custody determination has been made and the case is closed the playing field is no longer level for the parents. The custodial parent now has the high ground. If the non-custodial parent wishes to modify custody he/she must now meet a more rigid standard than the "best interests" standard. The non-custodial parent must now meet the McLendon standard. He/She must be able to show not only that it is in the best interest of the child for custody to transfer but that there has been a material change in circumstances and that the benefits of changing custody outweighs the harm that would come from uprooting the child from their current home and social environment. This standard is very difficult to satisfy. Recent cases have softened the requirement regarding the weight given to the harm of uprooting the child but the "material change in circumstances" requirement remains quite rigid. The material change in circumstances requirement is difficult to prove. For instance, in a case where children were removed from a parent based on a parent's drug addiction full rehabilitation from the same was not sufficient to show a material change in circumstances. Being better able to care for your child is not enough to satisfy this higher standard. Further, if a parent loses custody to a non-parent and a case closes that parent also loses the Terry presumption discussed above.
The point is that a parent must fight tooth and nail to maintain custody of their children. If they can help it they should not allow a case to close with any thing less than true joint physical custody. Anything less will cause that parent to have to fight an uphill battle to regain custody.
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