Family Law

Divorce: Child Custody FAQ

By Lina Guillen, Attorney
Learn answers to frequently asked questions about child custody.


Q: Can a court order parents to undergo drug testing when determining custody?


  • A:Quite likely, yes. And if you don't take the test, the consequences may be severe. A judge can hold you in contempt and suspended visitation privileges if you fail to comply with the court's order regarding drug testing.


Q: Can I move my kids out of state and then get a divorce?


  • A:Maybe. Unless there's a restraining order in place or a state law to the contrary, before filing for divorce, either parent can move to a new state with the children. But if you're the moving parent, you won't be able to file for divorce right away--you'll need to satisfy your new state's residency requirements, which typically range from a minimum of 3 to 12 months. Even after you satisfy those requirements, the state may not have the authority to decide all of your divorce issues--for example, if your spouse is still living in your old state, the court may not have jurisdiction over your spouse to make decisions about property, alimony, or child custody. And while you're living in the new state, waiting to meet your residency requirement, your spouse can file in your old state, forcing you to travel there to defend yourself in a divorce proceeding.

    The states recognized long ago that a parent might take the kids and move across the country in order to make custody and visitation more difficult for the other parent. Laws are generally written to avoid that possibility, but state rules vary a bit. It's best to speak with a local divorce lawyer before moving.


Q: I have custody of my son, but the court papers state that his mom--who lives in another state--has custody. Where do I file to get legal custody of the child?


  • A:The Uniform Child Custody and Jurisdiction Act ("UCCJA") and the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") normally govern multi-state custody matters. You'll most likely need to file in the state where custody was last decided. A specific answer to this question will depend on the laws that apply to your particular set of facts. You'll need to speak with a divorce attorney--one that has experience in interstate custody issues.


Q: If I'm going to file for divorce, should I leave the kids with my spouse until I'm settled elsewhere?


  • A: If you want shared custody of your children in the future, you should not just "up and leave" them with the other parent for a long period of time. In custody cases, judges tend to lean toward keeping the status quo in place, especially if the children are doing well and have had time to adjust to custody arrangements. Unless there's some serious problem with the parenting plan already in place, a judge will adopt it--with maybe some minor tweaks here and there. Leaving your kids, without trying to at least get temporary custody, may be seen as your approval of the other parent having sole custody.

    If you're trying to get away from an abusive spouse, and you fear for your children's safety, call police or the National Domestic Violence Hotline at 1-800-799-7233 (SAFE) to get help. You can also go to court and ask for a restraining order, which would prohibit your spouse from being around you or the kids (unsupervised), and require your spouse to stay a certain distance away from the family home.

    If you're considering leaving the family home, but want to establish custody, you should speak with a local family law attorney.


Q: My husband and I are separated, and he moved to another state. He has our child for a short visit, and has filed for divorce and custody in his new state. What do I do?


  • A:You should contact a local divorce attorney to discuss your situation right away. If you and your child resided in your state for the past six months, your state court would normally have "home state" jurisdiction (authority) to issue a custody order. You may need to contest the custody action in his state, although his state court can probably order a divorce.


Q: What is a shared custody arrangement and how does it work?


  • A:In most states, any custody or parenting arrangement must be in the "best interests of the child," so each case will be handled differently, depending on the circumstances. For example, parents who live far apart will have a different arrangement than parents who live in the same city and school district. Shared custody arrangements can have many variations, including a primary residential parent and a non-residential parent, who spends time with the child according to a visitation schedule (also called a parenting plan). Some courts have approved plans where the residential parent alternates annually, monthly, or weekly. Parents can generally agree on a shared parenting plan, or each parent can submit a proposed plan to the court and allow a judge to decide. Either way, the court must approve the plan.


Q: Who is the custodial parent when there is no court order and the parents aren't married?


  • A:It depends on state law. In many states, an unmarried woman who gives birth to a child is the sole residential parent and legal custodian of the child until a court issues an order designating another person as the residential parent and legal custodian. In other states a "presumed father" may have rights to custody. A man becomes a "presumed father" by taking certain actions, including:

    • signing an affidavit of paternity
    • marrying or attempting to marry the mother
    • taking the child into his home,
    • providing the child with financial support, or
    • holding the child out as his own


Q: Will a court look negatively on my smoking around my child?


  • A:Most courts must look at all factors related to the "best interests of a child" when making custody decisions. At least one court has found a custodial parent's smoking to be a relevant factor in changing custody. In that Georgia case, the child was diagnosed with asthma after the divorce, and the mother continued to smoke. The court held that the mother's continued smoking in the child's presence showed inadequate concern for the child's welfare.

    Smoking may not always be enough to justify a custody change, but it won't help. If your ex plans to use your smoking against you, stop smoking around your child. Better yet, stop smoking.


Q: Will moving in with another man ruin my chances of keeping custody of my daughter?


  • A:A claim of adulterywon't completely ruin your chances of getting custody, but it'll probably play an indirect role. State courts use a "best interests of the child" standard to determine custody issues.The court will consider whether your daughter's surroundings and home life are serving her best interests, so your relationship--and your child's relationship--with your partner will be directly relevant to the court's decision.


Q: Will the court allow me to change my child's last name to mine, from the father's last name, since her father isn't a major part of our daughter's life?


  • A:Changing a child's last name is governed by the "best interests of the child" standard in most states. Factors which are normally important include:

    • the effect the name change would have on the child
    • the effect of the change on the preservation and development of the child's relationship with each parent
    • the identification of the child as part of a family unit
    • the length of time the child has used a particular name
    • the child's preference, if the child is old enough to understand the decision
    • whether the child's last name is different from the residential parent's last name
    • the embarrassment, discomfort, or inconvenience that may result when a child bears a last name different from the residential parent's
    • parental failure to maintain contact and support the child, and
    • any other factor relevant to the child's best interests.

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