How to Get Custody of a Child

When it comes to child custody, there can be a lot of big emotions. Parents separating may both want custody of the child and seek to disparage the other parent in order to win custody. The court is focused on awarding custody based on the best interests of the child.

If you and your child's other parent cannot reach an agreement on custody, you need to petition, or ask, the court to grant the custody arrangement you want. 

There are generally three phases to petitioning for custody: the preparation phase, the filing phase, and the court phase. The exact requirements and process for each stage vary by state and the facts of the case.

Types of custody

There are two types of custody decisions in each case: legal custody and physical custody. 

The court may grant both physical and legal custody to one parent (sole custody) or both parents (joint custody). 

Legal custody involves your rights as a parent, including making decisions about a child's healthcare and education. Physical custody involves the decision on where your child lives.

• Sole legal custody: If you have sole legal custody, the decisions regarding your child are entirely yours to make. Sole legal custody usually accompanies sole physical custody.
• Joint legal custody: If you have joint legal custody, you and your ex-spouse must make parenting decisions together. It is possible for joint legal custody to go hand in hand with either sole or joint physical custody.
• Sole physical custody: If you have sole physical custody, your child lives with you full-time. Whether your ex-spouse has other rights, including visitation, depends on whether they have legal custody or not.
• Joint physical custody: If you have joint physical custody, your child splits their time between your home and the home of your ex-spouse. Typically, joint physical custody goes hand in hand with joint legal custody.

The court makes the final decision on custody in your divorce decree. While divorce decrees can be amended, obtaining a favorable result in your divorce case may prevent many problems in the future.

Legal custody

Having legal authority gives you the ability to make decisions on behalf of your child, such as schooling, after-school activities, religious beliefs, and medical decisions.

If a court finds that it is in your child's best interest to make you the sole legal custodian, the court will do so. But as with granting sole physical responsibility, sole legal custody will require a great deal of evidence from you indicating that it is in your child's best interest.

Physical custody

Physical custody is about where your child spends most of their time and who can make decisions about their day-to-day lives. Physical custody may be granted to just one parent, but this is rare and only happens if the court finds one parent unfit. 

Generally, in child custody cases, you need to show that your child is better off with you than your child's other parent. This can include evidence of:

• Abuse or neglect
• The other parent's inability to provide a stable home environment
• You are more financially stable
• You have a more flexible work schedule

Sole custody vs. full custody

The terms sole and full custody are often used interchangeably. They refer to the same thing, though sole custody is the more accurate legal term.

If the court awards you both physical and legal responsibility for your child, you will have sole custody. This means you need not consult with your child's other parent about where your child will live, attend school, etc. You are the sole decision-maker.

Unless the court determines that your child's other parent is not fit, the court will award visitation so that your child can continue to develop a relationship with both parents. Courts generally deem this in the child's best interest.

The court will probably require your child's other parent to pay child support as well. This is not meant to provide you with additional money for yourself but instead is a means to help keep your child in the same financial position as if the family were still together.

Sole custody vs. joint custody

Sole custody is when one parent is granted the legal and physical custody of the child and doesn’t need to share any decision-making with the other parent. Joint custody means the parents share decision-making, and both have some rights over legal and physical custody.

For some families, sole custody can be the best outcome for the child. Here's what sole custody entails.

1. Sole physical custody is where the child lives primarily with one parent, while the other parent has visitation rights.
2. Sole legal custody is where one parent has decision-making authority. This includes making major decisions about education, religion, and medical care.
3. Sometimes a parent will have both sole physical custody and sole legal custody, although this is the exception rather than the rule.
4. Often, if one parent has sole physical custody, the parents have joint legal custody, which requires discussing major decisions and coming to an agreement.
5. Joint custody, or shared custody, can be either joint physical custody, joint legal custody, or both. With joint physical custody, the child lives with each parent for a certain percentage of time, such as part of a week or every other week.
6. Each state has its own view of custody, but because courts want both parents involved in the child's life, judges typically want the parents to have joint custody.

​Sole custody usually means the other parent still has parental rights. When one parent is granted this by the court, that doesn't take away the other parent's right to be a part of their child's life. Courts do not grant sole custody unless there is a legitimate reason. The goal of the court is to keep the family unit as cohesive as possible.

What factors does the court consider for determining child custody?

Each state has slightly different rules and guidelines for determining custody. In addition to state laws, a court has a lot of leeway to determine what is best for a child when creating a child custody order. To make those decisions, they will consider many different factors.

• Best interests of the child: The most important factor a court weighs when determining child custody is what is best for the child. The court will look at the child’s relationship with each parent, the stability of each parent’s home environment, and the capability of each parent to care for the child.
• Primary caretaker: The court wants to maintain continuity for the child. To do this, they will consider who was the primary caretaker prior to the separation of the parents. Likely, the court will decide that the child should stay with that parent.
• Child’s preferences: If the child is old enough to speak on their own behalf, a court may ask them what they want and take those wishes into account when making the final decision.
• Relationship between the parents: Some separations are amicable, while others are contentious. A court will take into consideration the two parents' ability to work together or not to create a supportive environment for the child.
• Geographic location: A court will also assess where each parent lives. If the parents live far apart, the court will want to find a way to minimize travel for the child. Traveling and spending time far away from their community and friends could cause harmful disruptions to the child’s life. 
• Parental fitness: A court will also consider whether a parent is capable of caring for a child. If a parent is experiencing financial hardship, mental illness, or any other incapacitation, this might influence the court's decision on custody.

When deciding on custody, a court tries to take a holistic view of what will be best for the child. This means looking at and weighing many different factors of the child's welfare prior to making a decision.

How to obtain custody in 7 steps

Custody depends a lot on your relationship with your child and the laws in your state. The court will look at many factors when making a decision in a child custody case. A court’s preference is to maintain the family unit as much as possible, which means the best choice is joint custody.

How can you get full custody if joint custody is what most courts want? There are certain elements you must show to defeat a court's preference for joint custody. How to get sole legal custody or sole physical custody, or both, can happen if the following are true:

• Sole custody is in the best interests of the child and
• Joint custody isn't a good idea because you and your spouse can't get along well enough to co-parent your child

Step 1: Consult an attorney and establish goals

The first step in obtaining custody is to establish your goals and consult with an experienced attorney. A family law attorney can help you determine what’s best for you and your child and ensure that you’re following state guidelines.

A lawyer can also help you to identify your priorities and goals, so you have a clear endgame to work towards.

Step 2: Confirm grounds for custody

In general, a court is going to award joint custody because it is believed to be in the best interest of the child. If you are seeking sole custody, you will need strong evidence to support your case. To obtain sole custody, you will need to show that the other parent is unfit or has been abusive or neglectful in the past.

If you are not the child’s parent, you will need to show why awarding you custody over the child is in their best interests. To do this, you’ll need to show that the child’s parents are unfit. 

An attorney can help you to identify grounds for custody and to prepare evidence to support those grounds.

Step 3: File a custody petition

Once you understand your goals and the grounds for seeking custody, it’s time to file a petition. Your petition should be filed in the jurisdiction where the child lives. This legal paperwork will ask for basic demographic information about your child, your child's other parent, and you; the type of custody you are requesting; and information on related proceedings like a divorce or paternity action. If you have hired an attorney, the attorney will give you a list of the information they need from you to complete the appropriate forms on your behalf.

Complete the document requesting your preferred custody arrangement and file it with the court. If you are in the process of a divorce from your child's other parent, this request will be part of your divorce filings. If there are no divorce proceedings, you will need to start a new court case by filing a petition for custody and paying the applicable filing fee.

Step 4: Serve the other parent

In all cases, you will need to provide your spouse with notice of your custody request. The proper method of providing notice depends on whether the custody request is part of divorce proceedings or not and whether your child's other parent will agree to waive formal notice.

If it is not part of the divorce proceedings, you will need to serve the custody papers to the other parent. This must be done by an adult who is not involved in the case. Some states allow you to mail the papers or publish them. If you don’t have someone who can deliver the papers for you, you can hire a professional process server or ask the local sheriff.

Step 5: Attend mediation or negotiation sessions

In order to save money, time, and stress, it’s important to try and create a custody plan outside of court. You can do this with the help of a family law attorney or a mediator. Going through mediation or arbitration to find a solution that’s satisfactory for all parties will make the process less stressful for everyone involved. 

Step 6: Prepare for the custody hearing

If you cannot find an agreeable parenting plan outside of court, then it’s time to prepare for the custody hearing. During the custody hearing, you will present your case about your preferred custody arrangement, why, and for what reasons. You will need to present compelling evidence as to why you’ve decided that would be in the best interest of your child. This is especially true if you’re seeking sole custody. 

Evidence you might present could include:

• Financial records
• Proof of a stable home environment
• Character letter
• Witness testimony

How you present yourself in court is just as important as your evidence. Showing up organized, put together, and able to coherently describe why you would be the best parent for your child will show who you are and your ability to put their needs first.

Step 7: Attend the custody hearing

You will be assigned a court date where you will have the opportunity to present evidence supporting your request for custody. The judge will ask you questions and may request additional information. The judge could also order formal evaluations such as a psychiatrist evaluation of your child or a home visit.

There may be more than one court date required before the judge issues a decision. In a complex case, the judge can issue a temporary court order on what the custody arrangement will be until a final decision is reached.

Scenarios in which you have a better chance of getting custody

In some situations, it’s likely the court will decide that granting one parent custody and revoking custody from the other parent is best for the child's well-being. Those situations might include:

• The other parent is unable to adequately raise or properly supervise the child
• The other parent has neglected, abused, or abandoned the child
• You have a more flexible work schedule than the other parent, or you're available to take care of the child more often
• You have a restraining or protective order against the other parent, and the other parent poses a threat to the child
• The child is old enough to express his preference, and your state allows your child to have input about his custody
• The child has special needs, which you are better equipped to handle
• The child has bonded better with you and is thriving in your care
• You are the primary caregiver, and the other parent has minimal involvement in the child's upbringing
• You are the better parent at helping ensure the child's educational success
• You have more financial stability than the other parent
• You offer the child a more stable home environment (shelter, food, attention)
• The other parent has serious issues, such as domestic violence, substance or alcohol abuse, or other serious mental health issues that interfere with raising the child

If any of these situations are true in your custody case, you must provide substantiation that the court can review. If the court agrees it is in the best interest of your child, then it can award custody to you. 

FAQs

Can a non-parent get custody of a child?

Yes, a non-parent can get custody. This includes grandparents, other family members, or non-blood-related people. This can be quite difficult because the court believes consistency and staying with a parent are in the best interests of the child. To gain custody of a child that’s not yours, you’ll need to either get the parents to sign custody over to you or prove to the court that you are what’s best for the child.

Can you modify a custody order?

If circumstances in your life or the life of your ex-spouse change, it is possible to have custody agreements and child support orders altered. The court must act in the best interest of your child, and if things change in either parent's life, it is possible the court may alter the arrangements.

If you find yourself facing financial hardship, it is likely that the child support you were able to afford previously is no longer feasible. But to have your child support obligations lowered, you need to have the court agree to amend your divorce decree.

Is there a preference for full custody for mothers?

Most states used to award custody to mothers more often than to fathers. Now, almost every state has laws allowing both parents to get custody. As many fathers know, however, some judges still believe the mother should be the custodial parent. Some states are better than others in allowing either you or your spouse to have an equal chance of getting full custody.

If you're seeking sole custody, you should hire an experienced family lawyer. Custody is too important to handle by yourself.

What should I expect at a custody hearing?

The custody hearing is the legal proceeding where a judge assesses and determines the care and legal custody of a child moving forward. The court wants to ensure they choose what’s best for the child and will ask many questions and review documentation and evidence.

Does sole custody affect child support?

There are a number of factors in a divorce that can affect whether or not the court orders you or your future ex-spouse to make child support payments. One of the most important factors is whether or not the court grants you physical custody of your child in the divorce decree. Because the custodial parent is responsible for the up-front expenses of raising a child, sole custody can have a significant effect on child support payments.​

If you have sole physical custody of your child, you incur the day-to-day costs of feeding, clothing, and housing them. It's only fair that the noncustodial parent contributes financially. That's why, in many cases, a divorce decree requires a noncustodial parent to make child support payments to the parent with sole physical custody of the child. This is the case regardless of whether you have sole or joint legal custody.

Ronna L. DeLoe, Esq., and Larissa Bodniowycz contributed to this article.