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Custodia
Basic information and definitions
What is custody? What types of custody are there?
Custody is the legal responsibility for the care and control of your child under age 18. Legal custody is the right to make major decisions about your child, including decisions regarding education, medical care, and religion. Physical custody refers to the physical care and supervision of your child.
A custody order can include any combination of joint or sole custody depending on what the judge believes is in the child’s best interests.1 Shared legal and physical custody arrangements that are as close to 50/50 as possible are preferred under Guam law, but the best interests of the child are always the most important consideration.2
As part of a custody case, the judge will likely order visitation as well.3 A visitation order that gives equal time to the both parents is preferred even if only one parent is granted custody. Visitation can also be awarded to grandparents and any other person interested in the welfare of the child as long as this visitation is not against the best interests of the child.3
1 19 Guam Code § 8404(1)(a)
2 19 Guam Code § 8404(1)(h)
3 19 Guam Code § 8404(1)(g)
Who is considered to have custody if there is no custody order?
Which parent is considered (presumed) to have custody of your child may depend on the circumstances of the child’s birth. A child is considered “legitimate” if the child was born during a marriage or within 10 months after the marriage ended.1 If a child is born outside of those circumstances, the child is considered “illegitimate.” The parents of a “legitimate child” have equal rights to the custody of that child, whether the parents are living together or separately.2 For an “illegitimate child,” the mother is considered (presumed) to have custody if there is no order in place.3
1 19 Guam Code §§ 4101; 4102
2 19 Guam Code §§ 4106; 4107
3 19 Guam Code § 4109
What are some pros and cons of filing for custody?
Starting a custody case may not be the path that all parents who are living separately will take. Some people decide not to get a custody order because they don’t want to get the courts involved. They may have an informal agreement that works well for them or may think going to court will provoke the other parent, or there may be other reasons that a parent doesn’t want to involve the court system. Some of the benefits of a custody order are that the order can give you the right to make decisions about your child (legal custody) and the right to have your child live with you (physical custody).
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
Should I start a court case to ask for supervised visitation?
One option for a judge issuing a custody or visitation order is to direct that visitation be supervised.1 If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request although this may depend on your situation.
However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/or longer visits than what the parent had before you went into court, or even possibly some form of custody. This is especially likely given that Guam’s public policy favors shared custody arrangements and equally split visitation arrangements.2
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to Guam Finding a Lawyer to seek out legal advice.
1 19 Guam Code § 8404(1)(l)(2)
2 19 Guam Code § 8404(1)(h)
How the custody process works
Who can file for custody?
Either parent may bring a custody action, either within a divorce action or separately from it.1 If someone files for custody or visitation, the court is required to consider child support as well.2
It is possible for a non-parent to sue for the custody or guardianship of a child. If you are in a custody dispute over your child with someone who is not the other parent, this is the order of preference under the law for who should be granted custody if all other factors are equal:
- a parent;
- someone who was the chosen guardian for the child according to the wishes of a deceased parent;
- someone who is already in position as a trustee of a fund that is providing support to the child; and then
- a non-parent relative.3
1 19 Guam Code §§ 4108; 8404
2 19 Guam Code § 4104
3 19 Guam Code § 9108(c)
How will a judge make a decision about custody?
When deciding who will have custody, the judge will try to make an arrangement that is in the best interests of your child while considering the child’s mental and moral welfare.1 If your child is old enough to clearly explain his/her preference, the judge may take that into account as well.1 Between the parents, the law in Guam prefers that a mother be granted custody of a young child while a father be granted custody of an older child, but this preference would always be secondary to the best interests of the particular child and the situations of the parents involved in the custody dispute.2
In addition, the judge has the option to refer the parties with a custody/visitation case to mediation.3
1 19 Guam Code § 9108(a)
2 19 Guam Code § 9108(b)
3 19 Guam Code § 8404(2)
Can a parent who committed violence get custody or visitation?
It is public policy in Guam that children should not be exposed to family violence, even if your child is not physically harmed during any incidents of abuse, because of the lasting emotional effects this exposure can have.1 A parent who has committed family violence can only be awarded custody or visitation if the judge finds that enough protection can be provided for the child as well as for the parent who is the victim.2 The judge can also order an abuser to attend and complete a program for perpetrators of family violence or other counseling as a condition for visitation with your child.3
When considering any case where the judge determines that family violence has occurred, the judge must consider the safety and well-being of the child and any parent/guardian who is the victim as the primary concern. The judge must also take into account the abuser’s history of causing or attempting to cause bodily injury to another family or household member, or placing any family or household member in fear of bodily injury.4
Note: After you already have a final order of custody, if you bring a court case to modify your child’s custody or visitation order, it is considered a change of circumstances if the judge makes a finding that family violence has occurred since the time the original order was issued.5
1 19 Guam Code § 8404(1)(i)
2 19 Guam Code § 8404(1)(j)
3 19 Guam Code § 8404(1)(l)(3)
4 19 Guam Code § 8404(1)(o)
5 19 Guam Code § 8404(1)(k)
Can grandparents or other non-parents get visitation rights?
The judge in a custody case can award visitation to grandparents, as well as any other person interested in the welfare of the child. As with any custody decision, this can only be done if this visitation is in your child’s best interests.1
The law also requires the judge to include in a custody/visitation order that preference for childcare is given to the child’s non-custodial parent and then grandparents, even if the grandparent has not filed a separate petition for visitation. Again, this can only be done as long as it is would not be against the child’s best interests.2
1 19 Guam Code § 8404(1)(g)
2 19 Guam Code § 8404(1)(h)(5)
What protections can a judge include in a custody order when there is family violence?
A judge in a custody or visitation case can include any of the following protections in the order if the judge determines that one parent committed family violence against the other:
- that the exchange of your child take place in a protected setting;
- that your child’s visitation be supervised by another person or an agency;
- that the abuser must attend and complete a program of intervention for perpetrators of family violence or other counseling in order to have visitation with your child;
- that either parent or any other party with visitation not drink alcohol or take drugs during the visitation and for 24 hours before the visitation;
- that the abuser pay a fee to cover the costs of supervised visitation, or pay for the services of a guardian ad litem if the court appoints one;
- that overnight visitation be prohibited;
- that the abuser pay a bond to guarantee the return and safety of your child; and
- any other condition that is necessary to provide for the safety of your child, you, any victim of family violence, or any other family or household member.1
1 19 Guam Code § 8404(1)(l)
If a custody order is already in place, how can I get it changed?
A custody order can be changed (modified) whenever the best interests of the child require it.1 A petition to modify would generally not be filed right away after the judge issues the custody order. You normally have to prove that there has been a change of circumstances since the original order was issued for the judge to consider modification.2 A few examples of a change of circumstances could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you can prove that the other parent or someone else with visitation/custody of the child has committed family violence since the order was issued, that would also be considered a change of circumstances.2
In addition, there could be a couple of options that are filed immediately after the judge makes the custody order:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.
1 19 Guam Code § 8404(1)(f)
2 19 Guam Code § 8404(1)(k)
Where can I find more information on custody in Guam?
Go to GU Places that Help to find organizations and legal services in your area. The Office of the Attorney General of Guam also has some information on paternity and child support and the child support application and checklist of documents needed to apply.
Si me mudo a otro estado, ¿puedo transferir mi caso de custodia allá?
Es posible que en algún momento se mude con sus hijos/as del estado donde se dio la orden final de custodia. Para información sobre cómo solicitar que se transfiera el caso de custodia a un nuevo estado, por favor vaya a Transferir un caso de custodia a un estado diferente, en nuestra página general de Custodia. Sin embargo, es importante tener en cuenta que es probable que necesite obtener permiso de la corte o de el/la otro/a padre/madre para mudarse de estado. Por favor hable con un/a abogado/a para asegurarse que sus planes de mudanza no violen su orden de custodia o las leyes de secuestro parental de su estado.
Steps to file for custody
Considerations before filing
Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.
However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.
Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.
You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page.
In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.
Step 1: Prepare for the case
Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.
You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see How will a judge make a decision about custody? for more information.
Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.
Step 2: File and serve the custody petition
The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.
The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.
| If you and the other parent are… | Then you can usually file for custody in… |
|---|---|
| married and getting divorced | the divorce case. |
| married but not divorcing | a separate custody petition. |
| not married | a separate custody petition, but legal fatherhood (paternity) may need to be established first or during the custody case. |
Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, go to Can grandparents or other non-parents get visitation rights? or talk to a lawyer.
The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Guam Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.
Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for an order of protection and get temporary custody as part of the order of protection.
After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.
Step 3: Preliminary court dates
The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:
- problems with service of process;
- referrals to mediation;
- temporary custody and visitation orders; and
- pretrial motions.
During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.
For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section.
Step 4: Reach an agreement or go to trial
There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.
Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.
Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.
Step 5: Options if you disagree with the order
If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.
You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:
- The other parent gets sent to jail or charged with child abuse or neglect;
- The other parent is not following the custody and visitation order; or
- Your child’s needs change in a big way.
