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Custody
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 the age of 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.1
A custody order can include any combination of joint, shared or sole custody depending on what the judge believes is in the child’s best interests.2 As part of a custody order, the judge can order visitation as well. When crafting a visitation order, the judge is supposed to include enough detail to make sure that both parents understand the order and can follow it. The order should also clarify which parent will have to pay the costs of transporting the child to and from the visits.3
1 Wyo. Stat. § 20-5-202(a)(xiv)
2 Wyo. Stat. § 20-5-201(d)
3 Wyo. Stat. § 20-2-202(a)(i)(ii)
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 to have your child live with you (physical custody). If you decide not to get a custody order, then each parent may be considered to have equal rights to make decisions for the child and to have the child in their home.
While a custody order may help in many ways, generally, a parent may not need a custody order to file for child support as long as child primarily lives with that parent.
Should I start a court case to ask for supervised visitation?
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 s/he had before you went into court or even some form of custody.
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 Finding a Lawyer to seek out legal advice.
How the custody process works
How will a judge make a decision about custody?
When deciding who will have custody, the judge will make an arrangement that s/he thinks is in the best interest of your child.1 The judge should not start with any assumption about what type of custody arrangement is best. The judge may order any combination of joint, shared, or sole custody depending on the child’s best interest.2 Some of the factors that the judge will consider are:
- any domestic violence or child abuse committed by the other parent;3
- the quality of the relationship the child has with each parent;
- each parent’s ability to provide proper care for the child, including arranging for childcare if needed;
- how “fit” and “competent” the judge thinks each parent is;
- how willing each parent is to accept all of the responsibilities of parenting, including:
- caring for your child at certain specified times; and
- letting the other parent care for your child at other specified times;
- how the parents and child can best maintain and improve a relationship with each other;
- how the parents and child interact and communicate with each other and how this can be improved;
- how willing each parent is to allow the other parent to provide care without interference and to respect the other parent’s rights and responsibilities, including the right to privacy;
- the distance between the parents’ homes;
- the current physical and mental ability of each parent to care for the child;
- whether either parent has been convicted of a crime that requires him/her to register as a sex offender; and
- anything else the judge believes affects your child’s best interest.1
1 Wyo. Stat. § 20-2-201(a)
2 Wyo. Stat. § 20-2-201(d)
3 Wyo. Stat. § 20-2-201(c)
Can a parent who committed violence get custody or visitation?
When deciding custody, the judge must consider any evidence of domestic violence or child abuse that you can prove. The judge is supposed to determine that such abuse goes against (is contrary to) your children’s best interests and any arrangements for visitation are supposed to be designed to protect you and your children from further harm.1 The judge could give the abusive parent visitation, allow the abusive parent to have only supervised visitation, or deny the abusive parent visitation altogether.
1 Wyo. Stat. § 20-2-201(c)
Can a non-parent get visitation rights?
If you are the child’s grandparent or great-grandparent, then you may be able to get visitation rights. After holding a hearing, the judge will grant you reasonable visitation rights if s/he thinks that it would be in the best interest of the child and that it would not substantially impair the rights of the parents.1 Note: If the child is no longer living with his/her parents because s/he was adopted, the grandparent can only file for visitation if the child was adopted by at least one of his/her blood relatives. If neither adopting parent is related by blood to the child, the grandparent cannot file for visitation.2
Aside from grandparents, the only other person who can file for visitation is someone who:
- is not a blood relative to the child; and
- within the past 18 months, was the child’s primary caregiver for a period of 6 months or more.3
After holding a hearing, the judge will grant you reasonable visitation rights if s/he thinks that it would be in the best interest of the child and that it would not substantially impair the rights of the parents.3
1 Wyo. Stat. § 20-7-101(e), (a)
2 Wyo. Stat. § 20-7-101(c)
3 Wyo. Stat. § 20-7-102(a)
Do I need a lawyer?
Although a lawyer is not required to file for custody, it can be highly beneficial to have one, especially if the abuser has a lawyer. A lawyer who is knowledgeable about custody can help to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our Finding a Lawyer page.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Could a judge require me to take parenting classes?
In cases involving child custody, the court may order the parents to attend classes parenting classes. If the custody issues are being dealt with as part of a divorce, the judge could order you to take classes that deal with lessening the impact of divorce on your children, for example.1 If you are the victim of domestic violence, you may want to specifically request that you and the abuser take the classes at different times or different locations.
1 Wyo. Stat. § 20-2-201(f)
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 for visitation as a non-parent, go to Can a non-parent 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 Wyoming 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 a domestic violence order of protection and get temporary custody as part of that order.
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.
After a custody order is in place
If a custody order is already in place, how can I get it changed?
To change a custody or visitation order that is already in place, you need to file a petition to modify the order, which you can find on the Wyoming Courts website. A petition to modify would generally not be filed right away after the judge issues the custody order. For the judge to grant you a change in custody or visitation, you need to show that there has been a material (substantial) change in circumstances since the order was issued and that changing the order would be in the best interests of your child. Although there are many things that can qualify as a material change in circumstances, the law specifically identifies the “repeated and unreasonable failure of the custodial parent to allow visitation provided for in the custody order” as one example of a material change that can cause the judge to modify the order.1
Also, if a parent is in the military and gets temporarily deployed, is ordered to move a substantial distance away, or there is some other military-related reason that s/he can’t exercise his/her custody or visitation responsibilities temporarily, this could be grounds to temporarily modify an order. However, the temporary duty, mobilization or deployment and the resulting disruption to the child’s schedule are not considered a “material change in circumstances” for the purpose of seeking a permanent modification of the order.2 Note: During the time that the service member parent is away, his/her visitation rights can be used by his/her family member who has a close and substantial relationship to the child.3
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 Wyo. Stat. § 20-2-204(c)
2 Wyo. Stat. § 20-2-205(a)
3 Wyo. Stat. § 20-2-205(b)
Can I change the state where the case is being heard?
It may depend on many factors, which we explain on our general custody page in the Changing a final custody order section. This is often complicated, and as with all custody issues, it is probably best to talk to a lawyer about this. Please visit our Finding a Lawyer page.
Can a parent who does not have custody have access to the child's records?
Generally, both custodial and non-custodial parents have the same right of access to any records relating to their child, including school records, activities, teachers, teachers’ conferences, medical/dental treatment providers, and mental health records. However, a judge can order otherwise.1 If you believe that you or your child will be in danger if the other parent can access these records, you can mention this to the judge and try to prove why the other parent’s access should be limited or taken away.
1 Wyo. Stat. § 20-2-201(e)
