Conozca la Ley: Wyoming

ACTUALIZADA 18 de septiembre, 2008

WomensLaw.org strongly recommends that you get in touch with a lawyer in your community for more information on custody. Go to the WY Where to Find Help page for a listing of organizations that can help.

• General Information
  • Secuestro de Menores
  • Is there any difference between custody and visitation?
  • What are some benefits of getting a custody order?
  • Should I start a court case to ask for supervised visitation?
• Definitions
  • What options are there for legal custody?
  • What options are there for physical custody?
• Who can get custody or visitation?
  • Who can get custody?
  • Can a parent who committed violence get custody or visitation?
  • I am the child's relative (other than a parent). Can I get custody or visitation of the child?
• How the custody process works
  • How will a judge make a decision about custody?
  • If I have moved away from the house where my husband and children currently live, will this hurt my chances of gaining custody?
  • Do I need a lawyer?
  • Can I file for custody in Wyoming?
  • What is mediation?
  • If a court denies a request for custody, do they have to explain why?
  • Could a judge require me to take parenting classes?
  • Can I get financial support for my children and myself?
• After a custody order is in place
  • If a custody order is already in place, how can I get it changed?
  • Can I change the state where the case is being heard?
  • If there is a custody order in place, can I take my kids out of the state?
  • If the other parent takes the kids out of state without my permission, can I charge him with kidnapping?
  • Can a parent who does not have custody have access to the child's records?

General Information

arribaSecuestro de Menores

Custody is the legal responsibility for the care and control of your child (under 18).* The court may award custody of your child to one or both parents as part of a divorce or separation proceeding. There are 2 types of custody: legal and physical.

Legal custody is the right to make major decisions about your child. Some types of decisions included in the right of legal custody are: where your child goes to school, whether your child gets surgery and what kind of religious training your child receives.

Physical custody refers to who your child lives with on a day-to-day basis.**

*W.S. § 20-5-202(a)(ii)
**W.S. § 20-5-202(a)(xiv)

arribaIs there any difference between custody and visitation?

Custody can include the right to make decisions about your child (legal custody) and the right to have your child live with you (physical custody). A parent who does not have physical custody may be entitled to visitation. This means that even though your child lives with one parent, your child may get to spend time with the other parent. The court may order visitation with the other parent based on the best interests of the child.

You may also share legal custody of your child with the parent who has visitation. In this case, your child lives with one parent and spends time with the other parent, but both parents have the right to make important decisions about your child.

arribaWhat are some benefits of getting a custody order?

Some people decide not to get a custody order because they don't want to get the courts involved. They may have an informal agreement that works well for them or may think going to court will provoke the other parent.

A custody order can give you:

* The right to make decisions about your child (legal custody)
* The right to physical custody of your child (to have your child live with you)

If you decide not to get a custody order, then you and the other parent have equal rights to both of the above. The only way to change the equal right to make decisions about your child and to have your child live with you is by filing for custody of your child with the court.

While a custody order may help in many ways, you do NOT need a custody order to file for child support. When necessary, the court will order child support for the financial maintenance of your child.* (See “Can I get financial support for my children and myself?” below)

*W.S. § 20-2-301

arribaShould I start a court case to ask for supervised visitation?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you probably don't have much to lose by asking that the visits be supervised.

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the great majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the father on a few visits or the visits might be supervised by a relative for a few months -- and if there are no obvious problems, the visits will likely become unsupervised. Oftentimes, the father ends up with more frequent and/ or longer visits than he had before you went into court. He may even end up with joint custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out if that is best in your situation, please go to Finding a Lawyer to seek out legal advice.

Definitions

arribaWhat options are there for legal custody?

Legal custody may include joint, sole, or shared custody, as long as it is in the best interest of the child. A court will make a decision on legal custody based on what it thinks is most practical and beneficial for the well-being of the child.* The following are some factors the judge may consider when making his/her decision:

a) The quality of the relationship each child has with each parent
b) The ability of each parent to provide adequate care for each child
c) The competency and fitness of each parent
d) Each parent’s willingness to accept parenting responsibilities
e) How the parents and each child can best maintain and strengthen a relationship with each other
f) How the parents and each child interact and communicate with each other, and how this interaction may be improved
g) The ability and willingness of each parent to allow the other parent to provide care without intrusion and respect the other parent’s rights and privacy
h) Geographic distance between the parent’s residences
i) The current physical and mental ability of each parent to care for each child
j) Any additional factors the court believes are relevant*

If you have sole legal custody (also referred to as primary custody), then you are the parent who has the ultimate decision-making responsibility for the child.

If you have joint or shared legal custody of your child, it means that you share the right to make major decisions about your child with the other parent. Joint legal custody is sometimes referred to as “joint custody”. Both parents have the right to make decisions affecting the child even though only one parent has physical custody (your child lives with only one parent). Joint legal custody allows both parents to have a say in major issues like where your child goes to school, whether s/he will have surgery and what kind of religious training s/he receives.**

*W.S. § 20-2-201(a)
** Drake v. McCulloh, 43 P.3d 578 (Wyo., 2002)

arribaWhat options are there for physical custody?

In Wyoming, if you have sole physical custody of your child, then your child lives with you and not with the other parent. A parent with sole physical custody is sometimes said to have "primary physical custody" of the child. A parent with physical custody is responsible for the physical care and supervision of the child*, and decisions that affect that care. The fact that the other parent has visitation does not change this.

Joint or shared physical custody is where your child lives with both you and the other parent, splitting her/his time between both homes. Although the child spends time with both parents, the time may not necessarily be split equally. When there is joint physical custody, both parents share the rights of making day-to-day decisions about your child and the responsibilities of caring for your child. Some things that parents with joint physical custody will both be responsible for include: feeding your child, bathing your child, arranging medical care for your child, participating in your child's education and putting your child to bed at night. Because parents with joint physical custody usually have joint legal custody as well, it also means that both parents share the right to make major decisions about your child.

Here are some examples of joint physical custody:

- Your child spends 3 days a week with you, and 4 days a week with the other parent
- Your child spends one week, month or year with you and then the next week, month or year with the other parent.

If you have sole physical custody and the other parent has visitation rights, then this is not joint physical custody. This is true even if the other parent has a large amount of visitation time.**

*W.S. § 20-5-202(xiv)
**Resor v. Resor, 987 P.2d 146 (Wyo.,1999)

Who can get custody or visitation?

arribaWho can get custody?

At least one of the child's parents is entitled to custody, unless there is clear and compelling evidence that both parents are "unfit"* or both parents are no longer living.**

If the parents are no longer living or are considered "unfit", the judge can award custody to another person or, in extremely rare cases, to an agency such as the Wyoming Department of Family Services, depending on what the judge believes to be in the best interest of the child.(See factors the court will use for best interest of the child below under “How will a judge make a decision about custody”) “***

* In re Custody of Nunn, 14 P.3d 175, (Wyo., 2000)
**In re Kosmicki, 468 P.2d 818 (Wyo., 1970)
***W.S. § 20-2-201(a)

arribaCan a parent who committed violence get custody or visitation?

Yes, it is possible that a parent who has committed violence will get custody or visitation. The court will consider evidence that you or your child were abused as evidence that custody or visitation may not be in the best interest of your child. If the judge does find that violence has occurred, then s/he must make an arrangement that it thinks best protects you and your children from further harm. This could include giving the abusive parent visitation, allowing the abusive parent to have only supervised visitation, or denying the abusive parent visitation altogether.

If the judge does award the other parent visitation, you can request that the judge order the child be dropped off and picked up in a particular safe place, such as a police department.*

If you are concerned about your or your child’s safety and want to keep your address and phone number confidential during court proceedings, you have the right to file an affidavit or include this request in your court papers.  You would have to explain why the health, safety or liberty of you or child would be jeopardized if specific identifying information is not kept confidential.  The judge can hold a hearing about this issue and if the judge agrees, that information will be sealed and may not be given to the other party or the public.**  You may want to contact an attorney to discuss this further or ask the court staff how you can file an affidavit to make this request.

* W.S. § 20-2-201 (c)
** W.S. § 20-4-162

arribaI am the child's relative (other than a parent). Can I get custody or visitation of the child?

If you are the child's grandparent or great-grandparent*1, then you may be able to get visitation rights. The judge will grant you reasonable visitation rights if s/he thinks that it would be in the best interest of the child and that it would not substantially impair the child's parents' rights.*2 However, grandparents will not have an action if the minor grandchild has been adopted and neither adopting parent is related by blood to the child.*3

If you are another relative, then you can only start an action seeking visitation if you have been the child's primary caregiver for at least 6 months, within the past 18 months. "Primary caregiver" means that the child lived with you and you were the main person taking care of the child. Similar to the grandparents’ visitation rights, a court will only grant a primary caregiver reasonable visitation rights if it is in the best interest of the child and does not substantially impair the rights of the parents. *4

*1 W.S. § 20-7-101(e)
*2 W.S. § 20-7-101(a)
*3 W.S. § 20-7-101(c)
*4 W.S. § 20-7-102

How the custody process works

arribaHow will a judge make a decision about custody?

When deciding who will have custody, a judge will try to make an arrangement that s/he thinks is in the best interest of your child.* Some of the factors that the judge will consider are:

• The quality of the relationship each child has with each parent
• Each parent's ability to provide proper care for the child, including arranging for child care
• How "fit" and "competent" the judge thinks each parent is
• How willing each parent is to accept all of the responsibilities of parenting, including:
    o Caring for your child at certain specified times and
    o Letting the other parent care for your child at other specified times
• How the parents and each child can best maintain and improve a relationship with each other
• How the parents and each child interact and communicate with each other and how this can be improved
• How willing each parent is to allow the other parent to provide care without interference
• The distance between the parents' homes
• The current physical and mental ability of each parent to care for each child
• Whether you and/or your child were abused
• What custody arrangement would be relatively easy for the parents to keep to and would promote understanding between the parents
• Whether either parent attended parenting classes, if they were ordered by the court
• Anything else the judge believes affects your child's best interest**

The court will not automatically give preference to either the mother or the father in a custody case.***

*W.S. § 20-2-201(a)
**W.S. § 20-2-201(a)-(d)
***W.S. §§ 20-2-201(b); JRS v. GMS, 90 P.3d 718 (2004); Drake v. McCulloh, 43 P.3d 578 (2002); Rocha v. Rocha, 925 P.2d 231 (1996);

arribaIf I have moved away from the house where my husband and children currently live, will this hurt my chances of gaining custody?

We strongly recommend that you consult an attorney before leaving the home where your spouse and children currently live. In many cases, leaving the home where your husband and children currently live may hurt your chances of getting custody. This is especially true if you leave, but allow your children to remain in the residence with the other parent. However, if you left your marital home to flee abuse, make sure the judge knows this.*

*Pahl v. Pahl, 87 P.3d 1250 (Wyo., 2004); Reavis v. Reavis, 955 P.2d 428 (Wyo., 1998); Tytler v. Tytler, 15 Wyo. 319 (1907)

arribaDo I need a lawyer?

It is highly recommended that you get a lawyer, to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our WY Finding a Lawyer Page.

If you are unable to get a lawyer, you can file several types of motions on your own. A motion is the device you use to ask the court for its help.* To file a motion, you go to the courthouse, fill out the necessary forms, and return them to the court. The court clerk may be able to answer some of the administrative questions you have about filing a motion. However, the clerk cannot answer legal questions, tell you whether you should file for custody, or what the outcome may be.

Even if you plan on representing yourself, it may be helpful for you to have a lawyer review your forms before you file them.

*WY. R. RCP. Rule 7

arribaCan I file for custody in Wyoming?

You can only file for custody in Wyoming if it is your child's "home state". (There are exceptions to the "home state" rule -- see below.) The "home state" is the state where your child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than 6 months old, then your child's home state is the state where s/he has lived since birth. Leaving the state for a short period of time does not change your child's home state.*

If you and your child recently moved to Wyoming, generally you cannot file for custody in Wyoming until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least 6 months.*

If you and your child recently moved from Wyoming, generally either you or the other parent can file for custody in Wyoming until the child has living in another state for at least 6 months.*

However, there are exceptions to the home state rule. In some cases, you can file for custody in a state where the children and at least one parent have "significant connections." Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction. This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this.**

For a list of legal resources, please see our Wyoming Where to Find Help page.

You can also file for temporary emergency custody in Wyoming if it's not the home state if:

1. the child is present in the state, AND
2. the child has been abandoned, OR
3. it is necessary in an emergency to protect the child because either the child, a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse.***

*W.S. § 20-5-301(a)
**W.S. § 20-5-301(a)(ii)(A)(1), UCCJEA(1997)
***W.S. § 20-5-304(a)

arribaWhat is mediation?

Mediation is a private, informal way to work out your dispute. It uses a neutral third-party, called a mediator, to help you and the other parent agree on matters relating to custody and visitation of your child. A judge may refer you to mediation if s/he thinks it will be helpful, but the mediator cannot force you to agree to something that you don't want. If you are the victim of domestic violence, make sure the judge knows this. It may affect his/her decision on whether to send you to mediation.*

In general, the parents or anyone else who is asking for custody have to pay for mediation. In some cases, a judge may order different payment arrangements.

*W.S. § 1-43-101(a)(ii)-(iii)

arribaIf a court denies a request for custody, do they have to explain why?

No. Though judges are encouraged to explain the reasons for their decisions, there is no law saying that they have to.*

*Produit v. Produit, 35 P.3d 1240 (Wyo., 2001)

arribaCould a judge require me to take parenting classes?

Yes. In cases involving child custody, the court may order the parents to attend classes to learn about the impact of divorce on children. This could mean that you would have to cooperate with your abuser. If the judge tries to make you take parenting classes, make sure the judge knows that there has been violence and ask to take the classes separately from your abuser.*

* W.S. § 20-2-201(f)

arribaCan I get financial support for my children and myself?

Yes. However, it is important to be aware that child support and support for yourself are independent. For example, it is possible that you may only be able to get support for your children, and not for yourself.

Support for your child: Generally, the court will determine how much money the other parent will pay to support your child.*1 You can file for child support at the same time you file for custody, or you can file for child support separately. You do not have to file for custody of your child to get child support. The court almost always uses set child support guidelines to determine how much support you will receive.*2 The court uses a complex formula, but basically the court looks at both parents' incomes, whether either parent has to pay support for other children, and how much the custodial parent has to pay for health insurance.*2 Sometimes the court may consider other factors to change the support guidelines for your particular situation.*3 Some additional factors for the judge to consider include:
    • The child's age
    • The cost of child care
    • Any special health care or educational needs that your child has
    • Either parent's responsibility to support others
    • The value of services contributed by each parent
    • Any pregnancy expenses
    • Visitation transportation costs
    • Each parent's ability to provide health insurance through employment benefits
    • The amount of time the child spends with each parent (The more time your child spends with you, the more support you will              usually receive.)
    • The incomes and financial conditions of both parents
    • Whether a parent has violated any terms of the divorce decree
    • Whether either parent is voluntarily unemployed or underemployed. *4

Also, if your child spends more than 25% of his or her time with the noncustodial parent and that parent pays for a substantial portion of your child's needs (on top of what he pays for child support), then the court will find that you have "shared custody" of your child and lower the amount of support you will receive.

To get a rough idea of how much support you may receive, you can visit this website: www.alllaw.com/calculators/childsupport/wyoming/. However, this website only estimates the amount of support you may get. The amount of support you receive depends on how much the judge decides to award.

Support for you: This is also referred to as alimony. If you are getting separated or divorced, a court can award you temporary or permanent alimony. *5 This support is for a former spouse who is unable to adequately provide for himself or herself. *6 In deciding whether to award you (or your spouse) alimony, a judge will look at any factors that s/he feels are important to make a just and equitable decision.*7 A few of the factors a judge may look at are:
    • Your need for payment/ the other parent's ability to pay*8
    • How long you were married*9
    • The age, physical and emotional health of you and the other parent*10
    • The standard of living you had in your marriage and how likely it is that you will be able to maintain a similar standard of living*11
    • How much both parents can earn for a living, and the future abilities of each to earn a living *11
    • A judge may award alimony as a "lump sum" or as a series of payment over time.*12

There are no strict rules for alimony and property distribution and the judge’s ruling will depend on the specific facts of your case.*13 Additionally, the judge has the discretion to alter the alimony order at a later date if one of the parties to the action petitions for a change.*14

*1 W.S. § 20-2-301
*2 W.S. § 20-2-304
*3 Keck v. Jordan, 180 P.3d 889 (Wyo., 2008); Carlton v. Carlton, 997 P.2d 1028 (Wyo., 2000)_
*4 W.S. § 20-2-307(b)
*5 W.S. § 20-2-111
*6 W.S. § 20-2-114; Belless v. Belless, 21 P.3d 749 (Wyo., 2001).
*7 W.S. §§ 20-2-114,
*8 Johnson v. Johnson, 11 P.3d 948 (Wyo., 2000); Sellers v. Sellers, 775 P.2d 1029 (Wyo., 1989); Hendrickson v. Hendrickson, 583 P.2d 1265 (Wyo., 1978)
* 9 Carlton v. Carlton, 997 P.2d 1028 (Wyo., 2000); Paul v. Paul, 616 P.2d 707 (Wyo., 1980)
* 10 Keller v. Keller, 145 P.3d 451 (Wyo, 2006)
* 11 Carlton v. Carlton, 997 P.2d 1028 (Wyo., 2000); Triggs v. Triggs, 920 P.2d 653 (Wyo., 1996)
* 12 W.S. § 20-2-114
* 13 Breitenstine v. Breitenstine, 62 P.3d 587 (Wyo., 2003); Bricker v. Bricker, 877 P.2d 747 (Wyo. 1994); Moore v. Moore, 809 P.2d 261 (Wyo, 1991)
* 14 W.S. § 20-2-116

After a custody order is in place

arribaIf a custody order is already in place, how can I get it changed?

To change a custody or visitation order that is already in place, you need to file a motion with the court.* See http://www.courts.state.wy.us/DandCS.aspx for the appropriate custody forms. Generally, for the court to grant you a change in custody or visitation, you need to show that there has been a "material and substantial" change in circumstances since your last hearing and that changing the custody order would be in the best interest of your child according to Wyoming law.** A condition that existed when the custody order was entered is not a substantial or material change in circumstances. Moving away, without any other events, is not a substantial or material change in circumstance to warrant a change in the custody order. ***

To file a motion for a change in custody or visitation, you must fill out the necessary forms and return them to the court. You can visit your local courthouse to obtain copies of all the needed paper work. The court clerk may be able to answer some questions you have about the paperwork. However, the packet and court workers cannot tell you whether you should bring your case to court or what will happen if you do. It's best to have a lawyer help you if you can. To find a lawyer please visit our WY Finding a Lawyer page under the Where to Find Help tab on the top of this page.

*W.S. § 20-2-204
**W.S. § 20-2-201(a)
***Gurney v. Gurney, 899 P.2d 52, 55 (Wyo., 1995)

arribaCan I change the state where the case is being heard?

Maybe. If you move to another state, you may be able to change the state where the custody case is being heard. Once you and your child have been living in a new state for 6 consecutive months, then the new state may be able to hear your case. If you have been in the new state for less than 6 months, then you will probably have to ask the judge that is hearing the case to change the jurisdiction of your case. This is often complicated, and as with all custody issues, it is probably best to talk to a lawyer about this. Please visit our WY Finding a Lawyer page.

arribaIf there is a custody order in place, can I take my kids out of the state?

If you would like to move to another state with your child, then you usually have to ask the court's permission to modify the existing custody agreement. In deciding whether to allow you to move out of state, the judge may (but does not have to) consider:

    • How the children have fared under the original custody and visitation arrangement
    • The moving parent’s motives for proposing the move
    • Whether the move will improve the child and custodial parent's quality of life
    • What options would be available for visitation with the noncustodial parent
    • How often the noncustodial parent saw the child at the old location
    • Whether there are family or friends at the old or new location
    • The educational opportunities at the old and new locations *

Wishing to move or moving, without any other events, is not a substantial or material change in circumstance to warrant a change in the custody order.** The judge has broad discretion for modifying a child custody order, and the best interests of the child should be the most important considerations.

*WS. §§ 20-2-201(a)(x), 20-2-204(c); Jackson v. Jackson, 96 P.3d 21 (Wyo., 2004); Stonham v. Widiastuti, 79 P.3d 1188 (Wyo., 2003); Resor v. Resor, 987 P.2d 146 (Wyo., 1999); Watt v. Watt, 971 P.2d 608 (Wyo., 1999); Love v. Love, 851 P.2d 1283 (Wyo., 1993); Trudeau v. Trudeau, 822 P.2d 873 (1991)
**Gurney v. Gurney, 899 P.2d 52, 55 (Wyo., 1995)

arribaIf the other parent takes the kids out of state without my permission, can I charge him with kidnapping?

Usually not, but he may be charged custodial interference in some cases.

Generally, you cannot take your kids out of the state, even for a short period of time, without the other parent's permission, unless the court order specifically says you can. If your court order does not address this issue, then the other parent is usually not allowed to leave the state with your child, unless you give him permission.

If you have a custody/visitation order in place and the other parent tries to hide your child in violation of the custody or visitation order, you can speak with law enforcement about charging them with interference with custody or contempt. This is true whether the other parent leaves the state with your child or not.*

*W.S. § 20-2-204(b)

arribaCan a parent who does not have custody have access to the child's records?

Yes. Both the custodial and non-custodial parents will have access to your child's records, unless a court order says otherwise. These records include anything relating to your child, such as school records, medical and dental records. If you do not want the other parent to have access to these records, you must convince the judge that there is a good reason for him to limit this access.*

*WS. § 20-2-201(e)

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