Child custody laws in our system are coded under the laws governing family relationships. This area of the civil law is known as Family Law. Child custody statutes are usually found under the laws specifically related to the Divorce procedure. However, child custody laws are also applicable to separation cases where the dissolution of the marriage is not the final objective.
Like most civil laws, child custody laws are to be considered within their relationship to other laws. The capacity of a child to make decisions related to his or her care is directly associated with their capacity or lack thereof, to make decisions regarding marriage, suing or entering in a contractual relationship.
The reasoning behind this is that to enter in a contract agreement the person must be fully aware of the kind of responsibilities and duties he or she is engaging in. Therefore, for a contract to be valid and binding, the parties must have the maturity and the awareness to fully understand the consequences of what they are signing. This is known as the person’s legal capacity. The requirement of legal capacity is also applicable to making decisions regarding getting married or filing a law suit. The capacity to fully understand is the fundamental factor when examining a person’s ability to agree. It is assumed that a person cannot agree upon anything she or he does not fully understand. This is called: consent. Consent is a fundamental element in any bilateral relationship. We must consent when getting married and we must consent when signing an application or a contract.
In regards to the custody of a child, it is assumed that a minor lacks the capacity to fully understand, thus consent, to accept – in an intelligent fashion – what it takes when assuming the responsibility of taking care of his or herself. That is where the court comes in. The judge will be making the decision that a minor cannot make: which parent is better called to be named the primary custodian of the minor. Which parent is best qualified to protect and secure the child’s best interests. This is what a child custody case is all about, to provide for the child’s support and education, to secure the child the best possible future regardless of his or her parents decision to separate or get divorce.