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

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)

If you decide to file in court for custody, although custody laws vary by state, the process usually looks similar to this:

1. 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.
2. 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.

3. 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.

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)

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)

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)

Es posible que en algún momento se mude con sus hijos/as del estado donde se dio la orden final de custodia. Para información sobre cómo solicitar que se transfiera el caso de custodia a un nuevo estado, por favor vaya a Transferir un caso de custodia a un estado diferente, en nuestra página general de Custodia. Sin embargo, es importante tener en cuenta que es probable que necesite obtener permiso de la corte o de el/la otro/a padre/madre para mudarse de estado. Por favor hable con un/a abogado/a para asegurarse que sus planes de mudanza no violen su orden de custodia o las leyes de secuestro parental de su estado.