Child Custody Laws, Resources, and FAQs

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For most parents going through a divorce, custody issues are the primary concern. However, it’s important to realize that the courts have one goal: to ensure that the post-divorce custody agreement is in the best interests of the child. Whenever possible, the courts want to see both parents continue to be involved in a child’s life after a divorce.

Custody Laws in the 50 States

Each state has different child custody laws. Some states presume that parents have joint custody, while other states do not. In addition, some states presume that in the case of unmarried parents, the mother automatically has custody, while others expect single mothers to file for custody, even if the father is not involved.

State courts consider different factors, including (but are not limited to) the willingness to co-parent, the necessity to appoint a guardian or attorney for a child, as well as a list of statutory factors to determine child custody cases.

Mouse over the map below, and you can see a list of factors that each state considers when determining child custody.

Answers to Top Divorce and Child Custody Questions

Divorce can be one of the hardest events in anyone's lives and often there are more questions than answers. The following are some of the most common questions and answers to events surrounding divorce and child custody.

I feel when my spouse cheated on me, they abandoned our marriage. Will the courts see it this way, too? 

The courts are much more concerned about his relationship with the children than about your marital relationship. If he was involved in their lives before the divorce, then it’s reasonable to expect that the courts will support his involvement after the divorce as well – through shared custody or liberal visitation rights.

 My ex is in a same-sex relationship that I don't want our children to be around. Will the courts also see this as harmful?

First, remember that the courts may not share your opinions about the impact of same-sex relationships on children. Second, from the court’s perspective, denying your children an ongoing relationship with either parent could be far more harmful than anything they may be exposed to through contact with your ex-wife.

Can’t my ex just relinquish their child custody rights? 

Generally speaking, no. Even if he never exercises his child custody rights, the courts would rather have the option of later holding him accountable for paying child support in the event that you or your child require financial assistance.

We have a temporary child custody agreement, and my ex wants more visitation time. However, I am reluctant to introduce schedule changes. What should I do? 

Discuss the situation with your ex and establish some ground rules for changing the schedule. For example, requests for changes need to be presented with at least 24 hours notice, and requests need to go through you first before they are suggested to the kids.

Custody Law for Unmarried Parents

For unmarried parents, child custody laws differ from state to state. Some states require unmarried mothers to file for child custody, while other states presume that an unmarried mother automatically has custody. In either case, though, unmarried fathers can still file for custody and visitation rights, even if they’re not listed on the birth certificate. Here are some common questions about custody rights for unmarried parents:

I didn’t put my ex’s name on the birth certificate, but they now want to file for custody. Can they do this? 

Yes. Even if a birth father is not listed on the birth certificate, he can still file for child custody and/or visitation.

I will have primary custody; however, my ex wants regular visitations. Do the courts typically grant overnight visitation for newborns?

Most courts will not grant overnights until a child is at least three. In the meantime, shorter, more frequent visits are encouraged so a solid bond can be established early on.

My child's father keeps skipping visitations. Will taking them to court help?

While the courts do grant visitation rights, they aren’t in the business of forcing parents to exercise those rights. Consider talking with your ex about why he’s reluctant to exercise his rights and how you can help him gain confidence in his own parenting skills.

After four years of being uninvolved, my ex and their new spouse want to file for custody. Is this an attempt to avoid paying support, and should I worry?

Given his lack of participation in your son’s life up until this point, he would have to prove that you are an unfit mother in order to win child custody. Even though that's unlikely, you should speak with a lawyer about your case and begin to prepare yourself for the possibility that he will at least be given visitation with your son.

Resources for Parents Involved in Custody Disputes

Even if you decide to represent yourself in court, you should discuss the child custody laws in your state with a qualified attorney. Fortunately, free legal help is available for those who qualify.

  • Contact Legal Aid in your state.
  • Contact local law schools to inquire about free legal clinics.
  • If you are a victim of domestic violence, contact a local shelter to inquire about legal assistance.
  • Schedule a free consultation with a qualified child custody attorney in your state.

Tips for Parents Engaged in a Difficult Child Custody Battle

  1. Find a lawyer that you trust. Winning a child custody case is about a lot more than understanding child custody laws. It's also imperative that you feel comfortable with your lawyer and feel that he or she is fairly representing you.
  2. Do your homework. Participate actively in your case by doing as much research as you can, taking the action steps recommended by your lawyer, and thoroughly preparing for your child custody hearing.
  3. Do nothing to aggravate the case against you. Be mindful that your ex's lawyer may be looking for information to use against you, so be sure to conduct yourself responsibly and avoid ugly confrontations with your ex.