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EspañolHow 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:
- the child is present in the state, and
- 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.
