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 you 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. 

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, 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.

When there’s a custody issue within a divorce process or on its own, the plaintiff has to also file and serve the defendant with a copy of the standard parenting guidelines. These guidelines are considered an order of the court once service is completed. The child will stay under the custody of the parent who was the primary caregiver in the 12 months before the filing unless parties agree otherwise. These guidelines will continue in effect from service and until the parties agree or the court rules otherwise.¹

     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. 

     4.  Options if you lose the custody case

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. 

A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. 

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, as well as information about child support, and moving out of state with your child.

¹ SDCL § 25-4A-11