Child Custody Divorce

Child Custody Divorce is a legal arrangement for the decision making power of the parents over the life of their children after the divorce. These decisions refer to the most important aspects of the children's lives: health, education, care, religion and maintenance.

Child custody can be granted to one of the parents. In this case, we speak of sole custody or single custody. If the child custody divorce is given to both of the parents, we speak about shared custody or joint custody.

Besides these 2 forms of legal custody, there is also the concept of physical custody. Children will stay with the parent having the physical custody. That parent provides a home, shelter and takes care of the day to day activities of the children.

Child custody kicks in when parents divorce or separate or when the parents have been declared unfit to raise their own children. Another case is when parents die.

How do I file for child custody divorce?

During the divorce process, you are required to do the custody part. See Divorce Kits for more details.

Do I need a lawyer to file for child custody?

No, you do not need a lawyer. You can do it yourself. This is called Child Custody "Pro Se". It is a good alternative and it saves you the money. But is comes at a price: it is hard to do, time consuming and it might take a months to build your case.

Here are the steps you have to go through:

  1. Find out in which state you have to file for the child custody; 2) get the official documents to fill in from the competent court;
  2. Study the custody law of the competent state; 4) build your custody proposal. Describe the situation and list the advantages and the disadvantages (see the court's decision criteria below). Consider and present all the options;
  3. Build a factual (no emotions) log book of all the communication and visits between you and your ex partner;
  4. You will have to file more than one document, respect the deadlines whatever is takes;
  5. Represent yourself in the court house. Be calm and polite and stick to the facts. If you are not confident to do this, ask for legal aid. A paralegal might help you to review your case and to prepare you for the court hearing.

Who decides which parent gets custody?

In the USA the family courts decide on child custody divorce.

Usually, both parents get legal custody after a divorce (joint custody). Only if it is not in the interest of the child, the judge will decide otherwise. Not in the interest of the child might include: one of the parents is violent, is an alcoholic etc.

What are the criteria?

The main criteria for the decision are

  • 1) the interest of the child,
  • 2) are the parents fit for parenting,
  • 3) is one of the parents not working and taking care of the children full time,
  • 4) what is the current situation, 5) who is the primary caretaker?

How do I maximize my chances of getting custody?

Getting custody can be hard. Even if you try to get shared custody, your ex might be against it. So, if you expect difficulties getting custody and you want to arm yourself against it, we recommend you to read this book: Child Custody Strategies. Somewhere in these 1200 pages you will find your strategy. There are separate versions for women and men.

I want the custody order from the courts to be changed.

Things change. A divorced parent might move to another state or country. A parent changed his lifestyle or work schedule, or a non working mother accepts a job. These changes could require a change of the custody arrangement.

Parents can draw up a modified custody agreement themselves. It is not needed to get court approval, but it is advisable to get it. Enforcing a modified custody agreement that has not been approved by the court is difficult. The courts do approve most of the modification requests. Keep in mind that the courts will look at the interest of the children when they make their decision.

If my ex refuses my visitation, can I stop paying the child support?

Yes, you can stop paying your child support, but it will not help you. On the contrary, you will be in trouble. Child support obligations are independent of your visitation rights. The Child Support Enforcement will be on your doorstep to collect the money. Thus, you better do not use the child support payments to force your ex partner to not refuse your visitation. Find something else.

If I stop paying child support, can my ex refuse my visitation?

No, like we explained in the answer to the previous question, visitation rights are independent from child support.

Moving somewhere else and leaving the children with your ex partner until you find a permanent home. This is tricky if you want to have (joint) custody in the future. The judge looks at the status quo, at the arrangements that are in place at the moment of the decision. If you have been moved out then and your children are with your ex partner, it will work against you.

So, you better do not move out or you take your children with you. Of course you can also agree with your ex partner to share the child custody divorce until the court decision.

Moving the children to another state

When you move your children to another state because that state has a custody law that is more in favor of you, it will not help you. The competent state is the state where your children have been living for the last 6 month before the divorce. Thus, moving to another state to have a more favorable custody law does not help you at all for child custody divorce.

Smoking, drinking and drugs

Smoking, drinking and drugs usage are all important factors in the decision about child custody divorce of the courts. Judges see this as dangerous for the children and as such against the interest of the children.

If you have a reputation, you will have to work very very hard to get rid of it in order to make a change on custody or even on visitation of your children after the divorce.

If you do not smoke, drink and drugs, but your ex partner does, you could use this as an argument to get sole custody and to limit the visitation rights of your ex partner. But, be careful with limiting visitation rights. Is it really in the interest of your children?

In both situations, it is wise to document your case with evidence. That will make your position much stronger.

Abuse, violence

Those are very serieus, heavy weighing aspects for a judge when he decides on child custody divorce. Like with smoking, drinking and drugs, it is very difficult to get custody when you have a history with one of those. It will take a hugh effort to prove that you have changed your behavior and that you will not fall back into it again.

For the other parent, it is a very strong argument to gain sole child custody divorce. You should keep away your children from your abusive or violent parent.


Neglect is also a reason for a court to revoke custody. If both parents are neglective, the court can order to completely take away the parents rights and to give the child custody divorce to another caretaker or organization.

Unmarried parents

The principle for unmarried couples is that the mother gets the child custody divorce. Of course, couples can file a joint custody agreement and ask for approval from the courts. Again, the court will judge whether the custody agreement is in the interest of the children.

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