Know the Laws:
UPDATED June 12, 2012
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 MA 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:
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:
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.