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EspañolWhat are the usual steps when filling for custody?
If you decide to file in court for custody, although custody laws vary by state, the process usually looks similar to this:
- File for custody. Depending on the state or territory, you may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
- If you are a married parent who is not filing for divorce, you can file for custody on its own.
- If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
- Prepare for the custody process
The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.
During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.
- Prepare for trial
There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:
- communications between the parents can only be in writing;
- all communications can only be related to the child; and
- a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.
You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.
You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.
Who can file for custody?
Either parent may bring a custody action, either within a divorce action or separately from it.1 If someone files for custody or visitation, the court is required to consider child support as well.2
It is possible for a non-parent to sue for the custody or guardianship of a child. If you are in a custody dispute over your child with someone who is not the other parent, this is the order of preference under the law for who should be granted custody if all other factors are equal:
- a parent;
- someone who was the chosen guardian for the child according to the wishes of a deceased parent;
- someone who is already in position as a trustee of a fund that is providing support to the child; and then
- a non-parent relative.3
1 19 Guam Code §§ 4108; 8404
2 19 Guam Code § 4104
3 19 Guam Code § 9108(c)
How will a judge make a decision about custody?
When deciding who will have custody, the judge will try to make an arrangement that is in the best interests of your child while considering the child’s mental and moral welfare.1 If your child is old enough to clearly explain his/her preference, the judge may take that into account as well.1 Between the parents, the law in Guam prefers that a mother be granted custody of a young child while a father be granted custody of an older child, but this preference would always be secondary to the best interests of the particular child and the situations of the parents involved in the custody dispute.2
In addition, the judge has the option to refer the parties with a custody/visitation case to mediation.3
1 19 Guam Code § 9108(a)
2 19 Guam Code § 9108(b)
3 19 Guam Code § 8404(2)
Can a parent who committed violence get custody or visitation?
It is public policy in Guam that children should not be exposed to family violence, even if your child is not physically harmed during any incidents of abuse, because of the lasting emotional effects this exposure can have.1 A parent who has committed family violence can only be awarded custody or visitation if the judge finds that enough protection can be provided for the child as well as for the parent who is the victim.2 The judge can also order an abuser to attend and complete a program for perpetrators of family violence or other counseling as a condition for visitation with your child.3
When considering any case where the judge determines that family violence has occurred, the judge must consider the safety and well-being of the child and any parent/guardian who is the victim as the primary concern. The judge must also take into account the abuser’s history of causing or attempting to cause bodily injury to another family or household member, or placing any family or household member in fear of bodily injury.4
Note: After you already have a final order of custody, if you bring a court case to modify your child’s custody or visitation order, it is considered a change of circumstances if the judge makes a finding that family violence has occurred since the time the original order was issued.5
1 19 Guam Code § 8404(1)(i)
2 19 Guam Code § 8404(1)(j)
3 19 Guam Code § 8404(1)(l)(3)
4 19 Guam Code § 8404(1)(o)
5 19 Guam Code § 8404(1)(k)
Can grandparents or other non-parents get visitation rights?
The judge in a custody case can award visitation to grandparents, as well as any other person interested in the welfare of the child. As with any custody decision, this can only be done if this visitation is in your child’s best interests.1
The law also requires the judge to include in a custody/visitation order that preference for childcare is given to the child’s non-custodial parent and then grandparents, even if the grandparent has not filed a separate petition for visitation. Again, this can only be done as long as it is would not be against the child’s best interests.2
1 19 Guam Code § 8404(1)(g)
2 19 Guam Code § 8404(1)(h)(5)
What protections can a judge include in a custody order when there is family violence?
A judge in a custody or visitation case can include any of the following protections in the order if the judge determines that one parent committed family violence against the other:
- that the exchange of your child take place in a protected setting;
- that your child’s visitation be supervised by another person or an agency;
- that the abuser must attend and complete a program of intervention for perpetrators of family violence or other counseling in order to have visitation with your child;
- that either parent or any other party with visitation not drink alcohol or take drugs during the visitation and for 24 hours before the visitation;
- that the abuser pay a fee to cover the costs of supervised visitation, or pay for the services of a guardian ad litem if the court appoints one;
- that overnight visitation be prohibited;
- that the abuser pay a bond to guarantee the return and safety of your child; and
- any other condition that is necessary to provide for the safety of your child, you, any victim of family violence, or any other family or household member.1
1 19 Guam Code § 8404(1)(l)
If a custody order is already in place, how can I get it changed?
A custody order can be changed (modified) whenever the best interests of the child require it.1 A petition to modify would generally not be filed right away after the judge issues the custody order. You normally have to prove that there has been a change of circumstances since the original order was issued for the judge to consider modification.2 A few examples of a change of circumstances could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you can prove that the other parent or someone else with visitation/custody of the child has committed family violence since the order was issued, that would also be considered a change of circumstances.2
In addition, there could be a couple of options that are filed immediately after the judge makes the custody order:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.
1 19 Guam Code § 8404(1)(f)
2 19 Guam Code § 8404(1)(k)
Where can I find more information on custody in Guam?
Go to GU Places that Help to find organizations and legal services in your area. The Office of the Attorney General of Guam also has some information on paternity and child support and the child support application and checklist of documents needed to apply.
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.
