If you have children and are getting divorced—or if you were never married to your child’s other parent—you probably have a lot of questions about child custody. Here are answers to some common questions on the issue.
How do judges decide which parent gets custody of the children?
Judges follow state laws on child custody, and those laws can vary from state to state. But some principles are the same across the U.S. The top priority in custody cases is always the child’s best interests. Judges will decide which custody or parenting arrangements will best serve the children’s health, safety, and welfare. Most states require judges to consider certain factors when making that decision. Typically, judges will look at each parent’s ability to meet the child’s needs, the child’s current relationship with both parents, each parent’s willingness to encourage the child's relationship with the other parent, the child’s need for stability, and any history of domestic violence or child abuse.
Can children decide which parent they want to live with?
Children don’t have an absolute say about which parent they’ll primarily live with after the divorce. But most states allow judges to consider a child’s wishes, as long as the child is mature enough to communicate a reasonable opinion on the subject. But even when the child offers solid reasons for preferring to live with one parent over the other, that preference will only be one factor among all the other circumstances that the judge will consider before deciding what’s best for the child.
What is shared custody, and how does it work?
First of all, it’s important to point out the difference between legal custody and physical custody. Some states use different terms, but basically legal custody refers to the parents’ authority to make important decisions about their children’s lives (such as non-routine medical care, education, and religious training). Physical custody refers to the parents’ right to have their kids live with them.
Unless one parent isn’t capable of making sound decisions, most divorced parents share legal custody. That means they'll have to consult with each other and agree about major child-related decisions—or go back to court to have a judge resolve the dispute.
When it comes to physical custody, the traditional arrangement is for the children to live most of the time with one parent and have visitation with the other parent. But it’s becoming more and more common for parents to share physical custody. In this arrangement (also called “joint custody”), each parent has the kids for a substantial—but not necessarily equal—amount of time.
The actual schedule for shared parenting can vary depending on the circumstances, such as how far apart the parents live, the child’s school and extracurricular activities, and the parents’ work schedules. Parents may agree on a shared parenting plan, or each of them may submit a proposed plan to the court and allow a judge to decide. Either way, the judge must approve the plan to ensure that it's in the children's best interests.
If I'm going to file for divorce, should I leave the kids with my spouse until I'm settled elsewhere?
If you want shared custody of your children in the future, it’s not a good idea to leave the kids with the other parent for a long time. In custody cases, judges tend to lean toward keeping the status quo in place, especially if the children are doing well and have had time to adjust to custody arrangements. If you leave your children without at least trying to get a temporary custody order, the judge might see that as a sign that you approve of the other parent having sole custody or that you’re not concerned about maintaining your relationship with the kids.
If you're trying to get away from an abusive spouse and fear for your children's safety, call the police or contact the National Domestic Violence Hotline (1-800-799-7233) to get help. You can also go to court and ask for a restraining order, which would prohibit your spouse from being around you or the kids (unsupervised), and require your spouse to stay a certain distance away from the family home.
If you're considering leaving the family home but want to seek sole or shared custody of your children, you should speak with a local family law attorney for advice on how to proceed and protect your parental rights.
Can I move with my kids and file for custody in another state?
Before filing for divorce, either parent is free to move to a new state with the children. But if you’re the one who has moved, you'll need to satisfy your new state's residency requirements to file for divorce. Typically, you must have been living in the state for six weeks to six months, but it may be as much as a year in a few states if your spouse doesn’t also live there. Unless you live in one of the rare states that allow you to file for divorce as soon as you’ve moved there, your spouse could start a divorce case in your old state while you’re waiting to meet the residency requirement.
You should also know that even if you meet the residency requirements to file for divorce, the courts in your new state may not have the legal authority (or “jurisdiction”) to issue custody orders if you’ve recently moved there with your child. Almost all U.S. states have a standard set of laws known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which govern custody issues that involve multiple states. The general rule is that a state’s courts have jurisdiction to issue custody orders for children who’ve lived there with a parent for at least six months (or since birth if the child is younger than that) before the start of the divorce or other custody case.
The UCCJEA is complicated, with many exceptions to the general rules. So if you’re a parent and are planning to move to another state before starting the divorce process—or if your co-parent has already done that—you should speak with an experienced family lawyer.
Can either parent change or enforce custody in another state?
Under the UCCJEA (discussed above), once a judge in one state has issued orders concerning a child’s custody, courts in other states won’t have the jurisdiction to modify those orders. There are exceptions, including when both parents and the child no longer live in the first state. So if you still live (with or without your child) in the state where you got divorced, your ex usually won’t be able to file a motion to modify custody in another state.
The UCCJEA does include an exception allowing a new state’s courts to issue custody orders for a child who’s present in the state and needs protection from abuse or mistreatment. But that authority is for emergency situations, and it’s meant to be temporary.
Note that if you’ve moved to a different state, you may register your child custody order in the new state. Then, if your ex is violating the order, you could seek to enforce it in your new state. But the courts there still wouldn’t be able to modify the order unless you meet the strict requirements under the UCCJEA for changing a state’s exclusive jurisdiction over the order.
Here again, you should speak with a knowledgeable family law attorney if you’re facing a modification request or other custody problems across state lines.
Will dating during the divorce affect child custody?
Because judges focus on the child’s best interests when making custody decisions, the fact that a parent is dating someone else during the divorce won’t necessarily affect those decisions. But it could play a role if the new relationship exposes your kids to disturbing or harmful situations.
Also, dating during a divorce can create hard feelings for your spouse and children. Your spouse may be more likely to wage a nasty legal battle over custody. And if it gets in the way of your relationship with your kids, the judge may be less likely to give you shared custody.
Moving in with a new partner could make all of these complications even worse. Your children may find it awkward and uncomfortable to spend time with you at home with your new partner, and that could influence the judge’s decision about the living situation that would be best for the kids.
If you can’t wait until the divorce is final to start a new relationship (or if you’d already been having an affair before you or your spouse filed for divorce), you should tread carefully and be discreet. Don’t introduce your new partner to your children without talking to your spouse first and giving your kids time to adjust to the new situation.
Can a judge order parents to undergo drug testing when determining custody?
The rules vary from state to state, but judges may often order drug tests if there are accusations that the child is at risk because of a parent’s substance abuse. Also, if a judge has already restricted a parent’s visitation rights because of past behavior that endangers the child’s welfare, that parent may have to show clean drug and alcohol tests as a condition for seeing the child.
If a judge has ordered you to take a drug test but you refuse to do so, the consequences may be severe. You could be held in contempt of court, which can lead to penalties and even jail time. You could also lose your visitation rights.
Who has custody if the parents aren't married?
When parents aren’t married, in most states the mother will have full legal and physical custody from the time the child is born. But unmarried fathers can take steps to get custody rights.
First, they’ll need to establish their paternity. The easiest way to do this is to signing an acknowledgement or declaration of paternity with the mother. But the mother needs to sign the form as well. If she refuses, the father may have to file a request for blood tests to establish his paternity.
In some states, anyone who qualifies as a “presumed parent” may seek status as the legal parent, even if they aren’t the child’s biological father. Men (and same-sex partners) may be considered presumed parents if they’ve promptly showed their commitment to taking on parenting responsibilities—for instance, by providing financial support for the child, taking the child into their home, or holding the child out as their own.
Once an unmarried parent has established status as the child’s legal parent, that parent may file a petition requesting custody or visitation. Unless the parents can come to an agreement, the judge will hold a hearing and decide which custody arrangements would be in the child’s best interests—with the same considerations as in custody decisions during a divorce.
Will smoking around my child affect custody decisions?
As in all custody decisions, the judge will focus on what’s best for the child’s welfare. If you smoke in the house, your ex may argue—and the judge may agree—that you shouldn’t be able to have the child there because of the health risks of second-hand smoke. That argument will hold even more sway if your child has asthma or other health issues.
The role of smoking in the outcome of your custody case will depend on all of the other factors the judge will consider. But smoking around your child is never a good idea, and it can’t help in a custody dispute.
Will the court allow me to change my child's last name after the divorce?
Some of the same considerations that go into custody decisions play a role in a parent’s request to change the child’s last name after divorce. Generally, judges will grant these requests only when the change is in the child’s best interests. When making that decision, judges will typically look at factors such as:
- how long the child used the current last name
- how a name change would affect the child’s relationship with both parents and any siblings
- whether the child’s last name is different from that of the custodial parent, and if that difference causes problems for the child, and
- the child's preference, if the child is old enough to understand the decision.