General info and definitions
What is legal custody?
Legal custody refers to which parent has the right and responsibility to make all of the major decisions affecting the child’s life, regarding issues such as healthcare and education. Legal custody also covers the right to access your child’s educational, medical, psychological, dental, or other records, and the right to speak with/get obtain information from school officials, health care providers, counselors, or other professionals who interact with the child.1
When one parent has sole legal custody, s/he has the right to make those decisions alone. When parents have joint legal custody, the parents share the decision-making. The decision-making isn’t necessarily shared equally - a judge can give one parent power to make certain decisions by herself/himself while both parents have equal rights and responsibilities for other decisions.2
1 D.C. Code § 16-914(a)(1)(B)
2 D.C. Code § 16-914(d)(2)
What is physical custody?
Physical custody refers to a child’s living arrangements.1
Sole physical custody is when the child lives primarily with only one parent on a day-to-day basis. Joint physical custody is when there is a division of time with the child by both parents, but it does not necessarily mean the child spends equal amounts of time with each parent. The judge may also order a specific visitation schedule.
1 D.C. Code § 16-914(a)(1)(B)
What is joint custody?
Joint custody is the term used to describe a situation where parents have both joint physical custody and joint legal custody. In an action for custody, an award of joint custody is favored in D.C. However, if a judge determines that domestic violence, child abuse, neglect, or parental kidnapping has occurred, joint custody is no longer preferred. Instead, the judge should presume that joint custody is not in the best interest of the child (but the abusive parent can try to present evidence to change the judge’s mind).1 If the judge does grant the abusive parent custody (or visitation), the judge must explain his/her reason for doing so in a written statement.
In addition, the law says that the judge should only award visitation to an abusive parent if the judge finds that the child and the non-abusive parent can adequately be protected from the abusive parent.2 See Can a parent who committed violence get custody or visitation? to read more.
1 D.C. Code § 16-914(a)(2)
2 D.C. Code § 16-914(a-1)
What is a guardian ad litem?
A guardian ad litem is an attorney who the judge appoints to represent the child’s best interest during the court case. The guardian ad litem is not there to represent either you or the other parent but to try to represent what s/he thinks is in the child’s best interest.
In addition to a guardian ad litem, or instead of one, the judge can appoint an attorney for the child whenever s/he thinks that it is in the best interest of the child and that the case will be better facilitated by appointing a private attorney to represent the child in a custody case.1
1 D.C. Code § 16-914(g)
What is mediation?
Mediation is when a third party, called a mediator, tries to help the parents agree on a custody arrangement and visitation schedule instead of having the judge make the decision at trial.
Mediation may be used at the beginning stages of a custody case and/or it may be included in the parenting plan as a way to resolve disagreements between the parents once the custody case is over.1
If you are a survivor of domestic violence, mediation may not be appropriate. The abuser may use mediation as an opportunity for further control and abuse, and s/he may intimidate you into agreeing to something that you do not want. You may want to let the judge know that you are a victim of domestic violence and that you do not want to go through mediation. You can also let the mediator know about any domestic violence if your case is assigned to mediation.
If you do end up having to go to mediation, a lawyer or domestic violence advocate may be able to help you prepare for mediation. To find a lawyer or advocate in your area please visit our DC Places that Help page.
1 D.C. Code § 16-914(c)(11)
Who can get custody and visitation
Who can get custody and visitation?
Generally, at least one of the child’s parents is entitled to custody, unless there is strong evidence that both parents are unfit or unless it is not in the child’s best interest.1
If it would not be in the child’s best interest for either parent to have custody, the judge can give custody to another person depending on what she/he believes is in the best interest of the child.2
1 D.C. Code § 16-914(a)(2),(3)
2 D.C. Code § 16-831.03(c)(2)
Can a parent who committed violence get custody or visitation?
The judge is supposed to take into account a parent’s history of domestic violence when making custody or visitation decision but many other factors will also be considered and the abusive parent may still receive custody or visitation rights. If a judge determines that domestic violence, child abuse, neglect, or parental kidnapping has occurred, the judge should presume that joint custody (or sole custody) is not in the best interest of the child (but the abusive parent can try to present evidence to change the judge’s mind). If the judge believes that the parent committed family violence and the judge still gives that parent custody or visitation rights, the judge has to make a written statement outlining what factors support his/her decision.1
The judge can give the abusive parent visitation but only if the judge finds that the child and custodial parent can be protected from potential harm from the abusive parent. It is up to the parent who committed the violence to prove that visitation will not endanger the child or harm the child’s emotional development.2 However, if the child was conceived as a result of a sexual assault against you by the abuser and he was convicted of this crime in criminal court, the law does not allow him to get custody or visitation.3 For more information, see If my child was conceived from a sexual assault, can the biological father get custody or visitation?
It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues. For information on how to find a lawyer see our DC Finding a Lawyer page.
1 D.C. Code § 16-914(a)(2), (a-1)
2 D.C. Code § 16-914(a-1)
3 D.C. Code § 16-914(k)
If my child was conceived from a sexual assault, can the biological father get custody or visitation?
If your child was conceived as the result first degree sexual abuse, second degree sexual abuse, or child sexual abuse against you, the biological father cannot be granted legal custody or physical custody of the child, or visitation with the child. Note: The biological father must be convicted in criminal court of the crime in order for this law to apply. However, the biological father can still be responsible to pay child support for the child even if he cannot see the child.1
1 D.C. Code § 16-914(k)
Can a grandparent or other non-parent file for custody?
A non-parent, referred to by the court as a “third party,” can file for custody or file to “intervene” in an existing custody proceeding if the parent who is/has been the primary caretaker of the child within the past three years consents to the third party being able to request custody or if one of the following conditions are met:
- The third party is living with the child and there is an “exceptional circumstance” that makes giving custody to the third party necessary to prevent harm to the child; or
- The third party has:
- lived in the same household as the child for at least four of the six months immediately before s/he filed the complaint or motion for custody; or, if the child is under the age of six months, for at least half of the child’s life; and
- primarily assumed the duties and obligations for which a parent is legally responsible, including providing the child with food, clothing, shelter, education, financial support, and other care to meet the child’s needs.1
Note: A third party who is employed by the child’s parent to provide child care duties cannot file for custody even if s/he meets any of the above circumstances.2
Another way that a non-parent can file for custody or file to “intervene” in a custody proceeding is if the person can prove with clear and convincing evidence that s/he is a “de facto parent.”3 A “de facto parent” is someone who has taken on full and permanent responsibilities as the child’s parent and, with the biological parents’ agreement, holds himself/herself out as the child’s parent.4 If you think this may apply to you, please read the legal definition of “de facto parent” on our Selected D.C. Statutes page to see the requirements for proving that you are the de facto parent.
Remember, as a non-parent, even though you may have the right to file for custody based on one of the circumstances discussed above, a judge may or may not grant you custody. A judge will look at many factors to try to decide if giving you custody is in the child’s best interest. You can read those factors on our Selected D.C. Statutes page.
1 D.C. Code § 16-831.02(a)(1)
2 D.C. Code § 16-831.02(a)(2)
3 D.C. Code § 16-831.03
4 D.C. Code § 16-831.01
The custody process
Can I file for custody in D.C.?
You can only file for custody in D.C. if:
- D.C. is your child’s “home state” when you file for child custody;
- D.C. was your child’s “home state” within 6 months before you filed for child custody, even if the child doesn’t live in D.C. any longer, as long as one of the child’s parents (or a person acting as a parent) still lives in D.C;
- the court in the state where the child is living says that they do not have jurisdiction (power) over the case because D.C. is the more appropriate place to deal with the issue of custody and all of the following are true:
- the child and her/his parent (or a person acting like a parent) have a significant connection to D.C.;
- there is a lot of evidence in D.C. about the child’s care, protection, training, and personal relationships; or
- there is another state’s court that legally has jurisdiction but they choose to let D.C. have jurisdiction over the case because D.C. is the more appropriate place to determine custody.1
1 D.C. Code § 16-4602.01
What are the steps for filing for custody?
The specific steps for filing for custody vary, depending on your particular situation.
Usually, if you and the other parent are going through a divorce, you can request custody as part of the divorce complaint. Custody will be decided during the divorce either through settlement negotiations between the parents, or if the parents can’t agree, by the judge at a hearing if you or the other parent asks the judge to make a decision.
If you and the other parent were never married or you are currently married but you aren’t getting a divorce, either parent can petition (ask) the court for custody. To file for custody, you will need to draft (write) paperwork asking the court for custody. You will then need to turn in that paperwork to the court, along with money to pay a filing fee. If you cannot afford the filing fee, you may be able to request a fee waiver. Once you have turned in your paperwork and your filing fee (or fee waiver if eligible), you may be assigned a date to:
- return to court for a hearing in front of a judge;
- go to mediation with the other parent; or
- take other steps in your custody case, such as attending a parenting education course that is offered by the court.
Custody matters are often complicated. If you can get a lawyer to draft the paperwork for you, represent you, and/or give you legal advice, it might help to make sure your legal rights are protected. You will find a list of legal resources on our DC Finding a Lawyer page.
How will a judge make a decision about custody?
Custody is determined according to what the judge considers to be in the child’s best interest. The judge will consider all relevant factors, including, but not limited to:
- the child’s preference for who s/he wants to live with;
- the wishes of the child’s parent(s);
- the relationship the child has with his/her parents, siblings or any other persons involved;
- the child’s adjustment to his/her home, school, and community life;
- the mental and physical health of all individuals involved;
- any evidence of domestic or family violence;
- the ability of the parents to communicate and reach shared decisions affecting the child;
- the willingness of the parents to share custody;
- the prior involvement of each parent in the child’s life;
- the potential disruption of the child’s social and school life;
- how close the parents live from one another (for example, this would come into play if the judge were deciding whether having the kids go back and forth between the two homes would be reasonable);
- the demands of parental employment;
- the age and number of children;
- the sincerity of each parent’s request;
- the parent’s ability to financially support a joint custody arrangement;
- the impact on Temporary Assistance for Needy Families (TANF), or Program on Work, Employment, and Responsibilities, and medical assistance; and
- the benefit to the parents.1
The court may also order each parent to submit a detailed parenting plan, outlining each parent’s position for a proposed custody/visitation schedule, and allocation (division) of parental rights and responsibilities that would be in the best interest of the child.2 The judge will consider these parenting plans when evaluating the factors listed above and when making the custody decision.3
1 D.C. Code § 16-914(a)(3)
2 D.C. Code § 16-914(a-3)(2)(c)
3 D.C. Code § 16-914 (a-3)(d)(1)
Should I start a court case to ask for supervised visits?
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 may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request, although this may depend on your situation.
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 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 other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of 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 what may be best in your situation, please go to DC Finding a Lawyer to seek out legal advice.
After a custody order is in place
Can a parent who does not have custody have access to the child’s records?
Only a parent who has sole or joint legal custody over the child has the right to access the child’s school, medical, dental, and psychological records and the right to speak with and obtain information regarding the child from school officials, health care providers, counselors, or other persons interacting with the child.1 If one parent has sole legal custody, then that parent can choose whether or not to share those records with the non-custodial parent (unless the custody order specifically says that the parent must share those records).
1 D.C. Code § 16-914(a)(2)(B)
Can I change my custody order?
You or the other parent can ask the judge to terminate (end) or modify (change) your custody order (or the judge can do it on his/her own if appropriate). In order to change (or terminate) a custody order, you have to prove that there has been a “material and substantial change in circumstances” and that changing or terminating the custody order would be in the child’s best interest.1
1 D.C. Code § 16-914(f)
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.