Child Custody – What parents should know in a nutshell

Many times I have clients asking how best to protect their child, or how to stop their ex from taking the child out of the county, state, or even the country.  The clients want their ex’s to have a relationship with the child, but not at the expense of their own relationship.  This brief article I recently came across gives you a beginning point to understand custody, who can get it, what it means, and how it can affect the parties involved.

When parents do not live together, their most difficult and serious disagreements often involve their children. It is usually best, for both the parents and the children, if the parents can agree on their own about custody and visitation, without involving lawyers and the courts.
It is important for parents to remember that their problems are not the fault of their children. When trying to solve a disagreement about custody, the most important thing for parents to keep in mind is the best interests of the children.

Custody agreements

It is usually best if the parents can agree on custody. An agreement can provide for several different arrangements about where the children will live. Here are two examples.

  • The children live with one parent, who has primary custody. The other parent may have partial physical custody (the right to take the children away from the custodial parent’s home for a limited period of time).
  • The children live with each parent for part of the time, for instance, on alternate weeks. This is called shared physical custody.

Most custody agreements also say who will make major decisions about the children for things such as medical care, religious training and education. This is called legal custody, which may be shared by the parents or exercised by just one of them.

It is very, very unusual for a parent to be denied all contact with his or her children. A parent who does not have primary physical custody will generally have the right to partial physical custody.

What if parents can’t agree?

They should try again to work out a solution that is fair to both of them, but most of all best for the children. Some communities have mediation programs or counseling services that can help parents reach an agreement. If they still can’t agree, either parent may go to an attorney for help in reaching an agreement. If that doesn’t work, custody may have to be decided by a court.

Should a parent see a lawyer even if she or he agrees with the other parent on custody?

This is usually a good idea for two reasons. First, a parent may want to make sure what his/her rights are before reaching an agreement. A fair, lasting agreement can be reached when both parents understand their rights. Second, if both parties agree, a lawyer can have the agreement entered as a legally binding court order, which can be enforced through court action if either party doesn’t obey.

What if there is no court order?

An agreement about custody is fine as long as both parents are willing to follow it. The advantage of turning a custody agreement into a court order is that the court can force the parties to follow it.

If there is no custody order, both parents have an equal right to custody, and either can lawfully take physical possession of the child at any time. However, taking the child away without the other parent’s consent can be held against you in court if that action was not reasonable. If the other parent takes the child and you cannot work out an agreement for the return of the child, you can file a custody case and ask the judge to order the child returned.

What happens in the court?

Either parent can begin a custody action in court. Either before or after a hearing is held, the judge may require the parents and the child to attend counseling sessions to try to work out an agreement, and the judge may consider the counselor’s report in reaching a decision.

If the parents still cannot agree, a hearing will be scheduled. At the hearing, each parent will be able to present his or her side of the story. Each parent can submit evidence and have witnesses testify.

How will the judge make a decision?

The judge will make a decision based on the best interests of the children and will consider everything which affects these interests. The judge will consider factors affecting the child’s safety. A judge will also consider which party is more likely to encourage and permit frequent and continuing contact between the child and the other party.

You should know that as long as you have enough income to provide for the children’s basic needs, a low income alone will not prevent you from getting custody.

The law requires that mothers and fathers be treated equally. Neither parent has an automatic advantage because of their sex.

Can a custody order be changed?

Yes. A judge, at the request of either side, may change a custody order at any time if it appears that a change would be best for the children.

Can grandparents get custody?

Grandparents (great-grandparents also in some circumstances) can ask for supervised physical custody or partial physical custody

  • If the child has lived with them for a period of 12 months or more; (if action is filed within 6 months of removal)
  • If the parent to whom they are related has died; or
  • If the parents are separated at least 6 months

In some cases a grandparent can ask the court for physical/legal custody of a child:

If the relationship began with the consent of a parent under a court order and the grandparent assumes or is willing to assume responsibility for the child and one of the following conditions is met:

  • The child is dependent
  • If the child is at risk because of abuse, neglect, drug or alcohol abuse, or mental illness on the part of the parents; OR
  • If the child resided with the grandparent for at least 12 months and is removed from home by parents( if grandparent files for custody within 6 months of removal)

As always, the court will make its decision based upon the best interest of the child.

Can other relatives get custody?

Yes, but only in special cases. Non-parents, such as aunts, uncles, or friends, can sue a parent for custody if they raised the child. If the child is dependent (neglected, abandoned, or without proper care or control), a court may give custody of the child to an agency such as Children and Youth Services, or in some cases to a non-parent.

What if a custody order is violated?

A person who disobeys any custody order may be held in contempt of court or charged with a crime and may be fined and/or jailed. The judge may also take away custody rights from someone who has disobeyed the court order. In some cases, particularly in emergencies when the child’s safety is in danger, the police may be able to help.

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30 Comments

Filed under Family Law

30 responses to “Child Custody – What parents should know in a nutshell

  1. Stephanie Carrasquillo

    I’ve had custody of my two children for five years now and in them five years there father has moved several times and has violated the court order as well. At this moment he’s moved and will not tell me where, he’s been out of his last resident since I think the end of November 2013. Now at this moment I have filed for full custody, is it possible for the judge to grant me that?? I’ve done and followed all the rules and have provided for my children through it all , I need advice.

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  2. richelle

    My best friend just filed for divorce and his wife is not happy, she wont answer the door so she can be served, shes keeping his kids from him and now his mother in law says shes going to come pick up his kids and take them to eastern Oregon , is there anything he can do to stop it before the divorce us final?

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  3. lateena camphor

    My daughter was supposed to be at hergpas house on her father’s side and in that time her grandmother frpm her dads side came and took her without my permission. Its been a year and they have not givin her back nor will they let me see her. Her father is in federal prison been since before she was born. Therefore I have had full custody. ?. What can I do to gett her back also they took her across state lines

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  4. Cynthia

    I am a relative of the child. My husband & I have been the primary caregivers of this child. For both of her birthday days she has been with us. Now the parents are separated. The father lives with his parents. He never calls to check on the child. His father is an alcoholic & his mother is medically ill. Now with the mother’s permission. We have enrolled the child in gymnastics & dance. The grandparents want her every other weekend. Sometimes all week. They don’t care care that she is enrolled in activities. We provide everything for this child. She also knows is as grandma & grandpa. That’s only because she started calling us mom & dad. I work with this child. She is just 3 she knows her colors abc’s & how to count & spell her name. Also anyone that knows us knows we have raised this child. Now I know we do not have any rights. What makes her real grandparents think they have rights?

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    • Cynthia,
      Thank you for post. You may be putting the cart before the horse, as nothing has to be done until a court steps in and tells you it has to happen.

      Depending on the laws of the state you are in, grandparents do have the right to bring an action. In Pennsylvania, in order for a grandparent to bring an action for custody, partial or supervised physical custody, they have to have standing – the ability to bring an action before the court. The court allows for standing in a variety of instances:
      (1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an
      action.
      (2) where the parents of the child have been separated for a period of at least six months or have
      commenced and continued a proceeding to dissolve their marriage.
      (3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or
      great-grandparent, excluding brief temporary absences of the child from the home, and is removed
      from the home by the parents, an action must be filed within six months after the removal of the child from the home. This is also known as standing in loco parentis.
      4) A grandparent of the child who is not in loco parentis to the child, whose relationship with the child began either with the consent of a parent of the child or under a
      court order; who assumes or is willing to assume responsibility for the child; and when one of the following conditions is met:
      (A) the child has been determined to be a dependent child; or
      (B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.

      I would advise consulting an attorney in your area that is familiar with the state & local rules related to bringing or defending such an action.
      Phil

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  5. brittney

    Neither of us has filed custody over our child. We agreed to send our child to daycare. but instead of consulting me the father enrolled our son into daycare without my consent and used an address that is not an address to do so that I am unaware of him residing there. We can I do about this. I feel extremely uneasy about how my child was thrown into a school system that I’m unaware of.

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    • Brittney,
      Thank you for the reply. Your comment is lacking some specific information that I would need in order to provide you with a more informed opinion. However, if you and your child’s father do not currently have a custody order/have not gone to court, then there isn’t much anyone can do. He is entitled to the child, just as you are.
      The only way to potentially get what you want is to go to court and file for custody.

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  6. Brian

    My girlfriend had her daughter taken away from her a few months ago by her daughters father. He’s taken her to another state and uses this child as a tool to make my girlfriend upset all the time. Before all of this he would rarely be in the child’s life. She hardly knew him. One day the biological father showed up at the daughters grandparents house while the child was visiting them and took the child. Now he will not let my girlfriend see her daughter and messes with her all the time, holding the child over her head like a tool to tease her with. All this seems like bs to me and I know she has a right to see her daughter who was ripped from her home where she loved so much to be.

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  7. David Kaiser

    This article is everythibg thats wrong with america. No court made u have sex with anybody and now a court with no oversight and no constutional validity not only allows this degredation of our society,but it encourages it, go have sex, spit out some kids and they will make someone give u money and they will limit their rights to their child and their rights in society. Family court is a joke and so are women and occasionaly men who use it.

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  8. Emily

    My husband has joint custody of his daughter and we get her 10 more days each month. Her mother is primary care taker but since the day she was born her mother lived with her parents and her parents were the ones who were taking care of her most of the time. Then two years later the mother decides to move in with a boyfriend in an apartment and the child lived with her, but I feel the boyfriend was abusing her daughter because I would see bruises on her rear area and one was about the size of my palm and it was yellowed. I asked her if mommy spanked her and she said no so then I asked if her boyfriends sister spanked her (she would sometimes watch her if the mother or boyfriend were working) and she said no so then I asked her if mommy’s boyfriend spanked her and she said yes.She was about 3 at the time. Then the mother and boyfriend break up leaving her to move back in to her parents and a month or two later her parents tell her that she needs to get a job and start picking up after herself and her child and gave her two weeks. When those two weeks came the mother decided that she was going to pack her stuff up and leave before they could tell her to leave. And now she hasn’t lived with her daughter for about 7 months, she visits but I don’t know how often. I guess my question is, is this abandonment? I don’t trust her mother to be primary or to make big decisions for her child. She didn’t apply for medical insurance for her for two years, neither did the grandparents so she missed her three and four year check ups so my husband and I finally decided that we would apply for medical for her and get an appointment set up for her four year check up. Nor did she try and get her into daycare since she is currently in pre-k and will be in preschool next year, but her mother and the grandparents never get her to pre-k on time… So I’m concerned that the mother and her family isn’t concerned at all with her daughter because they lack the effort to get her to school on time or even sign her up or get medical. Would my husband I have a good chance of winning a case against her to get full custody? Our past wasn’t the greatest with our daughter since she was taken away for a year but we’ve since then been DHS free and have been taking care of all three girls (my husband and I have two kids together and then his daughter.) I just don’t feel the mother makes good decisions with school or medical or even boyfriends because after she moved back in with her grandparents there hasn’t been any bruises. I know she plans on moving in with her current boyfriend but I just feel that she is going to keep breaking up and moving back in and not living with her for months and then repeat the whole process all over. Please I need help!

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  9. Angie kokalis

    My parents and I agreed that I would be best if they got custody of my child so then they would give her to me and that that happened. My child has been living with me for 10 months but my parents decided to take her back for no real apparent reason. What do I do because they violated the court order but she still has safely living with me for 10 month very happy going to school what can I do now.

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  10. Jennifer

    What if the sperm donor took me to court after being absent for 4 years, gets the time share, but on the weekends shes there hes partyi g and its all over facebook. His granmda and mom are also parties on his end. But i thought this was between father and daughter to know each other?…. What can i do if hes out at a club at night? And this isnt the first time. We have plenty of pictures proving so. We just want full custody of her. This guy is still the same as a teenager.

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  11. sami

    Im a stepmother of two children who i currently take care. My husband is incarcerated and the biological mother has anandon her children for the past 9 months now that im filing abandonmemt and adopting the kids she has called and wants to see them. I dont think its whats best seeing hiw she has tried to kill her self and has been on drugs last 9 months. Should i let her see them or if i dont will i be making what im trying to do harder on myself.

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  12. John McFarland Jr

    I have soul custody of my three kids and the mother has visitations ever weekend and just a couple of days ago she was arrested for jumping in front of cars can I legally keep them from her if I feel it is not safe for my kids to go with her

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  13. samantha leary

    How can my songet his daughter thats lived in nj from the time she was born and her mother took her from the father while he was at his mothers and went to her fathers with the baby in pa and there is no court order in place about custody so how does my son get his child back in nj

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  14. I wants see my kids but my girlfriend she dnt want me to see my kids what should I do?

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  15. Amber Williamson

    I have full custody of my child and my ex isnt paying me thru DHR or child support he basically does it under the table. My question is with me having full custody.. do i get to say that he cant see his child until he pays his child support.

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  16. Matt

    My girl friend was pregnant with what I consider my son since he was only a month along when we got together. She told the actual father the pregnancy was terminated. She was using and abusing drugs and so was he. I have now been in this child’s life from before he was born to now where he is 18 months old. The mother has relapsed and on numerous occasions which I have documented driven not only him but what I consider my step daughter. Legally I am not either biological parent but scared since she is drinking and driving and smoking weed and carrying weed with them in car something is going to happen. My son calls me Dada my “step daughter” thinks I am his father what can I do to protect these kids. I have supported them put a roof over there head and love them to death I feel stuck because she uses them as pawns when she gets upset about anything that has to do with me it tears me apart. Is there anything I can do to make sure these children are safe ?

    Like

  17. Raven

    My daughter was taking from me because I was in an abusive relationship and was homeless so I agreed to give maternal great aunt from her dad’s side legal custody I’ve now got a place and a job and can provide for her every need am I able to get her back??

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  18. Mandi

    My child’s father had custody of my 15 year old for the ladt 2 years, which i had agreed on due to her being with her half sister and cause since she was two after the divorce, she wanted to live with him. Well, two months ago he packed her belongings and sent her back to me. She obviously wanted/wants to be with me. He has not gave me her proper documents such as birth certificate and etc. Due to me not being able to afford an attorney, he is saying he wants her back, now that the summer is over. I consider him abandoning her and her and i are both worried he can bring the law and take her away from me. So concerned, confused, and lost. Please someone lead me to the right advice….???

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  19. Mom

    My landlord reported my child was being endangered because the septic tank backed up in Thursday and the repair man didn’t come over the weekend and they removed her the safety plan person was abusing her children and having mine work manual labor and sleep in the floor fir two weeks and we removed her and state took custody the landlord had texted several people and told them she was going tlandlord removed child rrmoved so I would vacate the property as I was buying and found she doesn’t been own the property and if we do to court she gets charged for selling me a condemned property that isn’t hers. That is the reason in the court documents shy removed and landlord was the only one that knew other than repair man. This is a nightmare please help me I am a single mother and my daughter having a hard time being in foster care in a home with 10 foster children

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  20. Daniellle. Colvin

    I dnt know were to begin but my children are with thete dadfor last 5 years he agreed to leting kids come on weekends holidays etc as long it wasnt interrupted school. Well i jyst recently complied with child surport and every since i did he will not let me see or even let me talk on phone. This is not fsir or healthy for the kids. Plzs i need some help on how i csn get my children for xmas. He wnt let them come to my hoyse csuse i complied with child surport im doing the right thing paying my child surport and its worse now for some reason i dnt know if hes doing something wrong and dntcwant state envolved but i need help plzs reach out and help. I may not get to see my kids for xmas and its not fair iv had seen them evety year now all sudden i cant even talk to them on phone. I need to know what i have to do. Thetes no court envolved no one has custody hes just has them in school in county. But i never got my rights tsken away. Iv bern cslling the judfe who i seen for child surport. And she no help to me. She said i hsce every right yo them but i dnt have paper work. Thete daf said call coos i i tske them but hes always let me now its a big deal cause dcf got envolved and he dnt want the kids coming and telling me whats going on in there home with dad and new gf. Plzs help me guid me to right way. I know it wnt be before xmas so i will have to go without seeing them cause he said i can go his house with all gifts and my parents and sistets cant see them either. How is this fair to me?

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  21. Jen

    I don’t have any court ordered custody but I am her mother. She lives with her father right now, however I want her to come back and live with me. She is 9 years old and I believe she needs her mom @ this stage of her life. I don’t think her father will do this without a fight…because he thinks I’m not capable of rasing our daughter despite already having a very responsible, loving and caring 20 year old daughter from a previous relationship. Please help me make the best decisions about this. I don’t have very much money to spend on a lawyer but desperately need to get this taken care of. Please give me tips and suggestions

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  22. marie

    I’m in a situation where there is currently no court order. The kids don’t want to see their father. They are afraid of him. He keeps demanding to see them, and the kids refuse to go to his house, etc. Does PA demand that i “make them” see him, or does PA simply demand that I agree to appear in court, since he’s suing me for custody? In other words, am i violating the law, by allowing the kids to choose to stay with me, until such time as a court says otherwise? It’s been years now, and all the physical bruises are gone. PA seems to have very few laws protecting children from contact due to past emotional scars……

    Like

  23. Nicole

    I am the primary caregiver of my daughter she is eight, and i have taken care of her by myself since day one. Her father has no interest in seeing her , and when he does its for five min maybe every 7 months or so. we never went to court for it but with him being out of her life for so long does that automatically make it that i have full custody?

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  24. Karissa M Prins

    My best friend has a step daughter, and her mother is with holding her from her father when there is a visitation order in place. Also, she has since moved and the order is for a specific meeting location. She has lived with a registered sex offender multiple times. The girl has been hospitalized multiple times for illnesses and injuries due to neglect but the mother explains it away. My best friend’s husband has tried talking to the courts but they won’t help without formal paperwork and they can not afford a lawyer to file for full custody, and CPS keeps deeming their reports as false. There are many witnesses to the girl’s mom neglecting her emotionally, and in how she disciplines her. When she does let her see her father on very rare occasions, she comes over very thin and desperate for attention/affection. They could easily have custody through recorded conversations but they live on 1 of the 11 states that requires full consent for recorded conversations so that evidence was thrown out. The mother always seems to find friends to pay extreme lawyer costs, and the father doesn’t have this luxury. She has recently lost custody of 2 of her kids despite this fact, however, and is going to be taken to court to have a 3rd of her 4 kids later this year. The only thing they seem to be able to do to get her step daughter away from a bad situation is a lot of money they don’t have and the police refuse to intervene. This poor child is being lost in a system of technicalities. What can they do??

    Like

  25. Vanessa Topete

    I need your help. My ex says his DACA will expire this April 7. We have joint legal custody but my son lives with me and he only has visitation. Whta can I do? One time he asked me what would I do if he took my son away to Mexico and I never saw him back. I eel scared that once his DACA is expired he will take my son to Mexico wihout my permkission since he will be illegal or deported 😦

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  26. Kenny

    Hello, my ex wants to move out of state with our two young children. I am willing to write a letter to allow her to take them but only because things have been amicable and she’s agreed to help me keep contact through Skype and visits. I am worried she may have a change of heart at some point in the future and become combative and try to keep my kids from me. Will I still be able to pursue visitation rights if I agree to allowing her to take them out of state? I don’t want to be a pest but I want them to know me as they grow. I just love them so much.

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  27. Amanda

    Hello I was just wondering if someone could help me in a situation. I have primary physical custody of our 3 kids and my ex has partial custody they only go to his place for 6 hours a week split between 2 days usually. We have joint legal custody and our son’s doctor is saying he wants to put our son on a medicine for anxiety and my ex is saying absolutely no way because he likes to have complete control over everything and I am just worried what I can do to get my son on the medicine that he needs. Also my ex is in the marine reserves and I was wondering if it would be easy for me to get full legal custody (I will still talk to him about all the kids medical and legal things I always do) but he goes away for days, weeks and sometimes months at a time and is unreachable a lot of the time during those periods and I don’t want to have to worry about putting them on meds or anything and not being able to get a hold of him and having to wait and see if and when he’s available to talk to about it all. Now as soon as he became available I would talk to him about it but I don’t want him to be able to say no you have to now stop a medicine because I say so. Does anyone have any advice?

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