Legal Information: General

Custody

Custody

This section has general information about custody including:

  1. common factors that a judge considers when deciding custody;
  2. the pros and cons of filing for custody;
  3. whether to ask for supervised visitation; and
  4. how to change a final custody order once you’ve moved to a new state.

To view your state’s specific laws, please select your state from the drop-down menu. Custody is complicated and it is important to try to find a lawyer who has experience with custody and domestic violence laws to help you with your case.

General information

How will a judge make decisions about child custody?

Judges make decisions about child custody based on whatever they think is in the best interests of the child. States have different rules and guidelines as to what factors the judge will consider when deciding what is in the best interests of the child.

Examples of factors that a judge might look at when determining the “best interests of the child” are:

  • The emotional, social, moral, and educational needs of the child;
  • The home environments offered by each party;
  • The interpersonal relationship between the child and each parent;
  • The preference of the child, if the child is old enough and mature enough to give his/her preference;
  • The mental stability of each parent (including any mental illness or drug use);
  • Any history of domestic violence; and
  • The safety of the child.

Where can I file for child custody? Which state has jurisdiction?

In most situations, you can file for custody in the “home state” of the child. The “home state” is the state where the child has lived (with a parent or a person acting as a parent) for at least the last six consecutive months before a parent files for custody - however there are exceptions to this rule. (Note: Temporary absence from the state does not affect the six-month calculation.) If your child is less than six months old, the “home state” is usually the state where the child has lived from birth.

If you and your child recently moved to a new state, you may not be able to file for long-term custody in that new state until you have lived there for at least six months, though you may be able to file for emergency jurisdiction. Also, if there is a prior court order for custody, then you may have to file in that same court to change the custody order as long as one parent still lives in that state. We strongly suggest getting advice from an attorney about your particular situation.

If there is more than one state involved - for example, if the child has moved across state lines, or if the other parent is in a different state or tribal jurisdiction - then custody cases can be more complicated. In these cases, state, federal, and tribal laws may govern which court can hear your custody case. Therefore, as in all custody cases, it is very important that you find a knowledgable lawyer.

If you are trying to get temporary emergency custody in a new state you have moved to, it might depend on what state you are filing in. All states except for Massachusetts (and Puerto Rico) follow the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, you can file for temporary emergency custody in a state other than the home state if:

  1. the child is present in the state, and
  2. the child has been abandoned or needs emergency protection, because the child (or a sibling or parent of the child) is subjected to or threatened with mistreatment or abuse.

Massachusetts follows a slightly different law called the Uniform Child Custody Jurisdiction Act (UCCJA), and Puerto Rico follows the federal Parental Kidnapping Prevention Act (PKPA).

Getting emergency custody is difficult, so please talk to a lawyer before you file with the clerk of court. You may also want to talk to a domestic violence advocate about your options and for help in finding a lawyer.

Under certain circumstances, there may be other ways to file for custody. Please talk to a lawyer about this. Go to our Finding a Lawyer page for legal referrals. Also, if you have a custody case involving more than one state (or if you are considering relocating to another state) and there is a history of domestic violence, you may call the Legal Resource Center on Violence Against Women at 301-270-1550 for information and referrals.

To learn more about interstate custody, you can watch our 20-minute Online Information Clinic video entitled Interstate Custody and Domestic Violence.

Can I get temporary emergency custody?

States may have different standards for when emergency custody is granted. Some courts will grant you emergency custody temporarily without notice to the other parent and without that parent present (“ex parte”). Judges may only do this in extreme situations. You may want to explain your situation to a custody lawyer for advice on whether you may be a good candidate for getting an emergency custody order. If you do get an ex parte order, these orders generally are only for a short period of time so there may be a hearing to decide a final custody order. In most cases, when you file for emergency custody, the other parent will receive notice and an opportunity to be heard.

Note: An “ex parte” order may not be enforceable in other states. We suggest checking with a lawyer if you are planning on traveling to another state.

To file for emergency custody, we suggest that you contact a lawyer. To find one in your area, please click the Places that Help tab at the top of this page.

Should 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 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 Finding a Lawyer to seek out legal advice.

What are some pros and cons of starting a custody case?

There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for more custody or visitation rights than they had before. In some situations, some mothers may not need to file for custody if the father’s paternity has not been legally established.

However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:

  • The right to make decisions about your child and/or
  • The right to residency (to have your child live with you).

Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. If an abuser takes the children, and you do not have a custody order, law enforcement will not be able to return the children to you. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.

We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the Finding a Lawyer page.

Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. For information on filing for child support, you can contact your local courthouse by going to our Courthouse Locations page or talk to a lawyer.

Do I need a lawyer?

Custody cases are complicated and it is important to try to find an experienced lawyer to help you with your case. Please click on the Places that Help tab at the top of this page to find a lawyer or to find an advocate who can help you find a lawyer.

If you find a lawyer, be sure to ask about his/her experience with custody and domestic violence cases. For tips on working with a lawyer, click on Choosing and Working with a Lawyer.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

Will I have to give notice to the other parent if I want to relocate?

Most states have laws about what you need to do before leaving the state with your children, or even moving far within the same state, even if you are the parent who has custody. These are called state relocation laws and they can be found as a separate law, as one part of a custody law, or sometimes in judicial decisions called case law. In some states, the state relocation law applies even before a parent has filed for custody or a judge has entered a custody order. An attorney can tell you about the relocation law in your state.

Relocation laws can be challenging for survivors because many of these laws require that you give notification to the other parent a certain number of days before moving out of state. Some laws require the parent who wishes to relocate to file a petition in court to request permission from the judge to relocate. Often relocation laws include a list of factors that a judge must consider prior to permitting the custodial parent to relocate, and in some states, domestic violence is a factor.

Changing a final custody order

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

If you have a custody order already in place, you can ask the original court that issued the order to make changes to it (modify it) if one parent still lives in that state. Generally, you can only ask to have a final custody order modified if there has been a substantial change in circumstances since the order was issued and changing the order would be in the child’s best interests (although the exact legal standard can vary from state to state). For most states, we have more specific information about modifying a custody order. To check to see if we have this information in your state, scroll up and enter your state in the drop-down menu above.

Example: If there are new allegations of abuse, if either parent has been convicted of a crime that affects his/her parenting ability, a parent’s sudden drug use, etc. are possible examples that may count as a change in circumstances. These are just some possible examples that may be relevant in your state – there could be many others.

Generally, once a court has jurisdiction, that court will keep jurisdiction, even if you move to another state. If you have moved, you can ask the court that issued the original order to transfer the custody case to the new state that you are in. Under certain circumstances, such as if both parents and the children have left the original state, you may be able to ask the court in the new state to modify the order without going back to the original state. You will find more information about modifying a custody order in a different state in the following questions below.

Modifying an order is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. Go to our Finding a Lawyer page for legal referrals. You can also email us for more information about when someone can file to modify a custody order in a new state.

Are the laws for modifying a custody order the same in each state?

Each state has its own standard for modifying a custody order, usually found within the state custody law. In addition, there are laws about “jurisdiction,” which determine which state has the power (authority) to modify a custody order. The information below talks about the situation when you have a final child custody order from a state you used to live in, but now you have moved to a new state and you want to try to modify (change) the order in your new state’s court. The information provided is based on a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been adopted (followed) by every state except for Massachusetts (and Puerto Rico). Massachusetts (but not Puerto Rico) currently follows an older law called the Uniform Child Custody Jurisdiction Act (UCCJA), and the rules that we describe in the questions below may be slightly different if you live in one of those states. Please feel free to write to our Email Hotline with any related questions.

This issue is quite complicated and we strongly suggest that you get a lawyer to help you. Please go to our Finding a Lawyer page to find free and paid legal help. You also may contact the Legal Resource Center on Violence Against Women at 1-800-556-4053 for help finding if there has been a history of domestic abuse and you have a custody case involving more than one state.

I am moving and I want to transfer my case to the new state where my child and I will live.  How can I do that?

The first thing that’s important is to talk with an attorney about the state parental kidnapping and relocation laws in your current state. If it is legal for you to move across state lines with the children under those laws, and you wish to transfer the custody matter, you can file an “inconvenient forum” motion in the original court with the help of your attorney, which asks the original state to transfer the case to the state where you want to move to. However, it’s important to talk through your chances of success with your attorney to decide whether or not it makes sense to file the inconvenient forum motion in your case. (You don’t want to offend a judge who may end up keeping the custody case and making a decision about your children.) When deciding whether or not to transfer a custody case, a judge will consider the factors listed in What factors will a judge consider in deciding whether the new state would be a more convenient forum (place) to hear the case?

I want to change (modify) my final custody order but I have moved to a new state. Can I have the custody order modified by my new state?

If you have a final custody order and you move to another state, you will generally still have to return to the original state and ask the court that issued the order to make any modifications (changes) to the order. However, it is possible that your new state would agree to modify the order if one of the following is true:

  1. the original court decides that it cannot modify (change) the order;
  2. the original court agrees to transfer the case to your new state; or
  3. there are no longer any “interested parties,” such as the child, a parent, or an individual acting as a parent, living in the original state.1

In addition, the court in the new state can change (modify) your order temporarily if there is an emergency.

1 UCCJEA § 203

Why might a judge agree to transfer the custody case to my new state?

The judge might agree to transfer your custody case to your new state if you can meet one of the following requirements:

  1. the judge in the original state finds that they do not have “continuing jurisdiction” because there are no longer significant connections or substantial evidence regarding the child in that state;
  2. the judge in the original state finds that the new state would be a more “convenient forum” (place) to take over the case – see What factors will a judge consider in deciding whether the new state would be a more convenient forum (place) to hear the case? for further explanation of this; or
  3. the custody case is over, and none of the child’s parents or guardians still live in the original state and neither does the child.1

1 UCCJEA §§ 202, 203

What factors will a judge consider in deciding whether the new state would be a more convenient forum (place) to hear the case?

In Why might a judge agree to transfer the custody case to my new state?, we listed three reasons why a judge might agree to transfer your case to a new state. The second reason listed is if the judge in the original state believes that the new state is a more “convenient forum.” Here is a list of factors that the judge must consider when deciding if the new state would be a more convenient forum (place) to hear the case:

  1. whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
  2. the length of time the child has lived outside of the original state – the longer you have been in the new state, the better;
  3. the distance between the original state and the new state;
  4. the relative financial circumstances of the parties – for example, possibly if the other parent is in a better position to handle the costs associated with flying to another state to appear in court, it could weigh in your favor;
  5. any agreement you and the child’s other parent may have over which state should take power (“jurisdiction”) over the case;
  6. the nature and location of the evidence that would be required to resolve the litigation – for example, would more witnesses be in the new state?;
  7. the ability of the court of each state to decide the issue quickly and effectively; and
  8. how familiar the court of each state is with the facts and issues of your case. If the judge in the original state has handled court cases regarding the child and knows the parties well, it may not make sense to transfer the case to a new judge in a new state.1

We strongly recommend getting the help of a lawyer to figure out if your situation meets the requirements listed. For legal help, go to Finding a Lawyer . The Legal Resource Center on Violence Against Women may be able to assist your attorney to understand the arguments available under the UCCJEA if you are a victim of abuse. Their number is 301-270-1550.

1 UCCJEA § 207

I think that I might meet the requirements to transfer my custody case to a new state. Where do I begin?

If you believe that your situation may come under the laws explained above, we strongly suggest talking to an attorney in the original state where the order was issued as well as in your current state for help in filing the appropriate legal papers. Go to our Finding a Lawyer page for legal referrals.

If you cannot find an attorney, and you would like to talk more with WomensLaw about your particular situation, you can email us on our Email Hotline and we can see if there is any further information we can provide.

Getting custody with your restraining order

Can I get temporary custody as part of a restraining order against the other parent?

Whether or not you can get temporary custody with a restraining order depends on the laws of your state and on the judge who hears your case.  In most states, you can ask for temporary custody of your children as part of a restraining order against the other parent of those children.  Not every state allows this, so you should read the particular rules on our Restraining Orders page for your state.  Also, even if your state allows for temporary custody to be given in a restraining order, the decision is up to the judge who hears your request for a restraining order.

Also, if the other parent gets a custody order from a different court, it might conflict with the custody provision in your restraining order.  If that is the case, you should talk to a lawyer to figure out if your temporary custody is still valid in spite of the other parent’s order.  To find legal referrals, go to our Finding a Lawyer page.

Who can help me with further questions?

WomensLaw.org strongly recommends that you talk to someone in a local domestic violence agency and a lawyer to help you with this decision, if you have not already. To find a local agency or someone who can help you, click on the Places that Help tab at the top of this page.

Remember, the information on this page is just general information. Your state may have differing laws or other things you can do.

You may also want to check your state’s custody page on this site for additional information.  Go to Custody and put your state into the drop-down menu. 

WomensLaw serves and supports all survivors, no matter their sex or gender.