Transferring custody of a child or children can be a piece of cake, or it might be a long, arduous legal process. It all depends on how the parent who currently has custody feels about the situation. That parent is very much in the driver’s seat if existing custody papers are already in place. If she agrees to transfer custody to you, there’s generally no problem, but if she objects, you’ll have to go to court.
Transferring Custody by Agreement
It’s a relatively simple matter of putting your agreement in writing if the custody transfer is consensual. It’s best to include every possible imaginable term you can think of. When will the noncustodial parent have the children for parenting time or visitation? What about holidays, birthdays and vacations? Will the noncustodial parent pay child support? If you’re taking custody and you’ve been paying child support, include a clear date when this financial obligation ends because your child will now be living with you.
Legal vs. physical custody. Address both legal and physical custody. Physical custody relates to which parent your children spend the most overnights with, and legal custody refers to which parent makes major decisions on behalf of the children, such as those regarding education and medical care. In most states, it’s common for parents to share legal custody unless one parent is unfit.
Filing the agreement. Make sure the agreement states your full names, as well as those of your children. Sign it in the presence of a notary public, and submit it to a judge for approval. This typically involves filing it with the court under the docket or case number that was assigned to your initial custody order, along with a letter or statement asking the judge to sign the agreement into a new court order. The judge will most likely do so as long as he believes that the change is in your children’s best interests. For example, he might not sign custody over to a parent whom he knows has a substantiated record of drug abuse.
Transferring Custody in Contentious Situations
If your children’s other parent doesn’t agree to a change of custody, you’ll have to involve the court to a much greater extent. This involves asking the judge to change or modify your existing custody papers over the other parent’s objections, and it will almost invariably require some type of court hearing, sometimes called an “evidentiary” hearing. You’ll have to file a motion, petition or complaint – depending on your state’s process – with the court under your existing case or docket number asking the judge to modify your custody terms.
Then you must usually appear in court and produce evidence that shows why custody should be transferred to you. Your children’s other parent has a right to also submit evidence that proves custody should stay with her.
Make a compelling case. The judge probably won’t agree to transfer custody unless you can prove that there’s been a substantial and “material” change of circumstances. A material change is one that directly affects the kids’ safety and/or well-being, although it doesn’t necessarily have to endanger their health. “Change” is an important condition too. The circumstance must generally not have existed at the time the original custody papers went into effect, although in some cases, the fact that it’s worsened might be considered reasonable cause for a change of custody.
Determining the best interests of the child. In some cases, the change might be as innocent a child who’s mature enough to make such a decision as deciding that he really wants to live with his other parent. In others, the change might be more serious, like a parent facing criminal charges or maintaining a lifestyle that’s clearly bad for the kids. In most states, a child’s wishes aren’t “controlling,” meaning that the judge doesn’t have to base his decision on this factor alone, particularly if the parent the child wants to live with is unfit. The judge must find that overall the transfer of custody is in the children’s best interests.
You might need the help of a lawyer with this process, someone who understands the law and court rules.
Transferring Custody to a Third Party
The burden of proof to move a child from the custody of a parent to a third party is pretty high. The law takes the position that a child is best off with his parent or parents when at all possible. If one parent is unfit, custody would generally revert to the other.
That said, a nonparent would have to take the same steps as a parent if she wanted to remove the child from his parents’ custody without the parents’ consent. She would have to file a petition with the court and attend a hearing to prove circumstances that warrant the transfer. A judge won’t remove a child from his parents unless it’s clearly established that both of them are unfit, and it’s rarely a snap decision by a judge. He would most likely order psychological evaluations of all parties, and he might ask the state’s department of children’s services to investigate both homes. Even the standards for a consensual transfer of custody would be very exacting.
Always Involve the Court
Resist the urge to simply pack up your kids’ bags and move them into a new household. This can cause numerous problems, not the least of which is that you’d be in violation of the existing court order as long as it’s not superseded by another order. If your child’s other parent suddenly decides that she doesn’t agree with the change after all, she might level criminal or civil charges, such as kidnapping or interference with custody, and you would have no way of proving that the transfer of custody was consensual.