What is custody? What types of custody are there?
Custody is the legal responsibility for the care and control of your child under age 18. Legal custody is the right to make major decisions about your child, including decisions regarding education, medical care, and religion. Physical custody refers to the physical care and supervision of your child.
A custody order can include any combination of joint or sole custody depending on what the judge believes is in the child’s best interests.1 Shared legal and physical custody arrangements that are as close to 50/50 as possible are preferred under Guam law, but the best interests of the child are always the most important consideration.2
As part of a custody case, the judge will likely order visitation as well.3 A visitation order that gives equal time to the both parents is preferred even if only one parent is granted custody. Visitation can also be awarded to grandparents and any other person interested in the welfare of the child as long as this visitation is not against the best interests of the child.3
1 19 Guam Code § 8404(1)(a)
2 19 Guam Code § 8404(1)(h)
3 19 Guam Code § 8404(1)(g)
Who is considered to have custody if there is no custody order?
Which parent is considered (presumed) to have custody of your child may depend on the circumstances of the child’s birth. A child is considered “legitimate” if the child was born during a marriage or within 10 months after the marriage ended.1 If a child is born outside of those circumstances, the child is considered “illegitimate.” The parents of a “legitimate child” have equal rights to the custody of that child, whether the parents are living together or separately.2 For an “illegitimate child,” the mother is considered (presumed) to have custody if there is no order in place.3
1 19 Guam Code §§ 4101, 4102
2 19 Guam Code §§ 4106, 4107
3 19 Guam Code § 4109
What are some pros and cons of filing for custody?
Starting a custody case may not be the path that all parents who are living separately will take. 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, or there may be other reasons that a parent doesn’t want to involve the court system. Some of the benefits of a custody order are that the order can give you the right to make decisions about your child (legal custody) and the right to have your child live with you (physical custody).
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
Should I start a court case to ask for supervised visitation?
One option for a judge issuing a custody or visitation order is to direct that visitation be supervised.1 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 what the parent had before you went into court, or even possibly some form of custody. This is especially likely given that Guam’s public policy favors shared custody arrangements and equally split visitation arrangements.2
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 Guam Finding a Lawyer to seek out legal advice.
1 19 Guam Code § 8404(1)(l)(2)
2 19 Guam Code § 8404(1)(h)