Know the Laws:
Custody laws are state laws and each state has different laws (also called a statute). As with everything on this site, this information is not legal advice. Custody is complicated and it is important to try to find a lawyer who has experience with custody and domestic violence laws to help you with your case.
Below is general information about custody. The terms used on this page are defined generally, and may have different meanings in your state. Please check your specific state's laws.
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 Where to Find 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.
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:
In most situations and in most states, you can file for custody in the "home state" of the child. The "home state" is basically 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 - 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 custody in that new state until you have lived there for at least six months. Also, if there is a prior court order for custody, then you may have to file in that same court for future custody issues. 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 - then it can be more complicated. In these cases, both state and federal laws may govern which court can hear your custody case. Therefore, as in all custody cases, it is very important that you find a lawyer to help you determine which court to go to.
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:
Massachusetts (but not Puerto Rico) follows a slightly different law called the UCCJA. Under the UCCJA, a person can file for temporary emergency jurisdiction only if the child was abandoned or needs emergency protection because the child (not the parent or sibling) is subjected to or threatened with mistreatment or abuse.
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 1-800-556-4053 for information and referrals to attorneys who may be able to assist.
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:
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. 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.
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.
If you have a custody order already in place, you can ask the original court that issued the order to make changes to it (modify it). Generally, you can only ask to have a final custody order modified if there has been a substantial change in circumstances since the order was issued and changing the order would be in the child's best interests (although the exact legal standard can vary from state to state). For most states, we have more specific information about modifying a custody order. To check to see if we have this information in your state, scroll up and enter your state in the drop-down menu above.
Example: If there are new allegations of abuse, if either parent has been convicted of a crime that affects his/her parenting ability, a parent's sudden drug use, etc. are possible examples that may count as a change in circumstances. These are just some possible examples that may be relevant in your state -- there could be many others.
Generally, once a court has jurisdiction, that court will keep jurisdiction, even if you move to another state. If you have moved, you can ask the court that issued the original order to change the jurisdiction to the new state that you are in. Under certain circumstances, you can ask the court in the new state to modify the order without going back to the original state. You will find more information about modifying a custody order in a different state in the following questions below.
Modifying an order is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. Go to our Finding a Lawyer page for legal referrals. You can also email us for more information about when someone can file to modify a custody order in a new state.
No. The law for Massachusetts (and Puerto Rico) may be different than the laws for the rest of the states. The following questions in this is section address the laws in the rest of the states. The information below talks about the situation when you have a final child custody order from a state you used to live in, but now you have moved to a new state and you want to try to modify (change) the order in your new state’s court. The information provided is based on a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been adopted (followed) by every state except for Massachusetts (and Puerto Rico). Massachusetts (but not Puerto Rico) currently follows an older law called the Uniform Child Custody Jurisdiction Act (UCCJA), and the rules that we describe in the questions below may be slightly different if you live in one of those states. Please feel free to write to our Email Hotline with any related questions.
This issue is quite complicated and we strongly suggest that you get a lawyer to help you. Please go to our Finding a Lawyer page to find free and paid legal help. You also may contact the Legal Resource Center on Violence Against Women at 1-800-556-4053 for help finding an attorney if there has been a history of domestic abuse and you have a custody case involving more than one state.
Maybe. If you have a custody order and you move to another state, you will generally still have to return to the original state and ask the court that issued the order to make any modifications (changes) to the order. However, it is possible that your new state would agree to modify the order if:
Note: In the situations described in #1 and #2 above, you would still have to file your legal papers in the original state and ask that the case be transferred to the new state for the modification hearing. In the situation described in #3, you may be able to file the modification petition in the new state you are in without first going back to the original state.
* UCCJEA § 203
The judge might agree to transfer your custody case to your new state if you can meet one of the following requirements:
* UCCJEA §§ 202, 203
In Why might a judge agree to transfer the custody case to my new state?, we listed three reasons why a judge might agree to transfer your case to a new state. The second reason listed is if the judge in the original state believes that the new state is a more “convenient forum.” Here is a list of factors that the judge must consider when deciding if the new state would be a more convenient forum (place) to hear the case:
We strongly recommend getting the help of a lawyer to figure out if your situation meets the requirements listed. For legal help, go to Finding a Lawyer . The Legal Resource Center on Violence Against Women may be able to assist your attorney to understand the arguments available under the UCCJEA if you are a victim of abuse. Their number is 1-800-556-4053.
* UCCJEA § 207
If you believe that your situation may come under the laws explained above, we strongly suggest talking to an attorney in the original state where the order was issued as well as in your current state for help in filing the appropriate legal papers. Go to our Finding a Lawyer page for legal referrals. You also may contact the Legal Resource Center on Violence Against Women at 1-800-556-4053 for help finding an attorney if there has been a history of abuse and you have a custody case involving more than one state.
If you cannot find an attorney, and you would like to talk more with WomensLaw.org about your particular situation, you can email us on our Email Hotline and we can see if there is any further information we can provide.
Whether or not you can get temporary custody with a restraining order depends on the laws of your state and on the judge who hears your case. In most states, you can ask for temporary custody of your children as part of a restraining order against the other parent of those children. Not every state allows this, so you should read the particular rules on our Restraining Orders page for your state. Also, even if your state allows for temporary custody to be given in a restraining order, the decision is up to the judge who hears your request for a restraining order.
Also, if the other parent gets a custody order from a different court, it might conflict with the custody provision in your restraining order. If that is the case, you should talk to a lawyer to figure out if your temporary custody is still valid in spite of the other parent's order. To find legal referrals, go to our Finding a Lawyer page.
States may have different standards for when emergency custody is granted. Some courts will grant you emergency custody without notice to the other parent and without that parent present ("ex parte"). Judges may only do this in extreme situations but it may depend on your state or county. You may need to prove to the judge that your kids are in danger in order to get an emergency custody order like this or you may not. 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.
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 Where to Find Help tab at the top of this page.
WomensLaw.org strongly recommends that you talk to someone in a local domestic violence agency and a lawyer to help you with this decision, if you have not already. To find a local agency or someone who can help you, click on the Where to Find Help tab at the top of this page.
Remember, the information on this page is just general information. Your state may have differing laws or other things you can do.
You may also want to check your state's custody page on this site for additional information. Go to Custody and put your state into the drop-down menu.