Judges make decisions about child custody based on whatever they think is in the best interests of the child. States have different rules and guidelines as to what factors the judge will consider when deciding what is in the best interests of the child.

Examples of factors that a judge might look at when determining the “best interests of the child” are:

• The emotional, social, moral, and educational needs of the child;
• The home environments offered by each party;
• The interpersonal relationship between the child and each parent;
• The preference of the child, if the child is old enough and mature enough to give his/her preference;
• The mental stability of each parent (including any mental illness or drug use);
• Any history of domestic violence; and
• The safety of the child.

States may have different standards for when emergency custody is granted. Some courts will grant you emergency custody temporarily without notice to the other parent and without that parent present (“ex parte”). Judges may only do this in extreme situations. You may want to explain your situation to a custody lawyer for advice on whether you may be a good candidate for getting an emergency custody order. If you do get an ex parte order, these orders generally are only for a short period of time so there may be a hearing to decide a final custody order. In most cases, when you file for emergency custody, the other parent will receive notice and an opportunity to be heard.

Note: An “ex parte” order may not be enforceable in other states. We suggest checking with a lawyer if you are planning on traveling to another state.

To file for emergency custody, we suggest that you contact a lawyer. To find one in your area, please click the Places that Help tab at the top of this page.

There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for more custody or visitation rights than they had before. In some situations, some mothers may not need to file for custody if the father’s paternity has not been legally established.

However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:

• The right to make decisions about your child and/or
• The right to residency (to have your child live with you).

Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. If an abuser takes the children, and you do not have a custody order, law enforcement will not be able to return the children to you. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.

We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the Finding a Lawyer page.

Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. For information on filing for child support, you can contact your local courthouse by going to our Courthouse Locations page or talk to a lawyer.

Most states have laws about what you need to do before leaving the state with your children, or even moving far within the same state, even if you are the parent who has custody. These are called state relocation laws and they can be found as a separate law, as one part of a custody law, or sometimes in judicial decisions called case law. In some states, the state relocation law applies even before a parent has filed for custody or a judge has entered a custody order. An attorney can tell you about the relocation law in your state.

Relocation laws can be challenging for survivors because many of these laws require that you give notification to the other parent a certain number of days before moving out of state. Some laws require the parent who wishes to relocate to file a petition in court to request permission from the judge to relocate. Often relocation laws include a list of factors that a judge must consider prior to permitting the custodial parent to relocate, and in some states, domestic violence is a factor.

If you have a custody order already in place, you can ask the original court that issued the order to make changes to it (modify it) if one parent still lives in that state. Generally, you can only ask to have a final custody order modified if there has been a substantial change in circumstances since the order was issued and changing the order would be in the child’s best interests (although the exact legal standard can vary from state to state). For most states, we have more specific information about modifying a custody order. To check to see if we have this information in your state, scroll up and enter your state in the drop-down menu above.

Example: If there are new allegations of abuse, if either parent has been convicted of a crime that affects his/her parenting ability, a parent’s sudden drug use, etc. are possible examples that may count as a change in circumstances. These are just some possible examples that may be relevant in your state – there could be many others.

Generally, once a court has jurisdiction, that court will keep jurisdiction, even if you move to another state. If you have moved, you can ask the court that issued the original order to transfer the custody case to the new state that you are in. Under certain circumstances, such as if both parents and the children have left the original state, you may be able to ask the court in the new state to modify the order without going back to the original state. You will find more information about modifying a custody order in a different state in the following questions below.

Modifying an order is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. Go to our Finding a Lawyer page for legal referrals. You can also email us for more information about when someone can file to modify a custody order in a new state.

The first thing that’s important is to talk with an attorney about the state parental kidnapping and relocation laws in your current state. If it is legal for you to move across state lines with the children under those laws, and you wish to transfer the custody matter, you can file an “inconvenient forum” motion in the original court with the help of your attorney, which asks the original state to transfer the case to the state where you want to move to. However, it’s important to talk through your chances of success with your attorney to decide whether or not it makes sense to file the inconvenient forum motion in your case. (You don’t want to offend a judge who may end up keeping the custody case and making a decision about your children.) When deciding whether or not to transfer a custody case, a judge will consider the factors listed in What factors will a judge consider in deciding whether the new state would be a more convenient forum (place) to hear the case?

In Why might a judge agree to transfer the custody case to my new state?, we listed three reasons why a judge might agree to transfer your case to a new state. The second reason listed is if the judge in the original state believes that the new state is a more “convenient forum.” Here is a list of factors that the judge must consider when deciding if the new state would be a more convenient forum (place) to hear the case:

1. whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
2. the length of time the child has lived outside of the original state – the longer you have been in the new state, the better;
3. the distance between the original state and the new state;
4. the relative financial circumstances of the parties – for example, possibly if the other parent is in a better position to handle the costs associated with flying to another state to appear in court, it could weigh in your favor;
5. any agreement you and the child’s other parent may have over which state should take power (“jurisdiction”) over the case;
6. the nature and location of the evidence that would be required to resolve the litigation – for example, would more witnesses be in the new state?;
7. the ability of the court of each state to decide the issue quickly and effectively; and
8. how familiar the court of each state is with the facts and issues of your case. If the judge in the original state has handled court cases regarding the child and knows the parties well, it may not make sense to transfer the case to a new judge in a new state.¹

We strongly recommend getting the help of a lawyer to figure out if your situation meets the requirements listed. For legal help, go to Finding a Lawyer . The Legal Resource Center on Violence Against Women may be able to assist your attorney to understand the arguments available under the UCCJEA if you are a victim of abuse. Their number is 301-270-1550.

¹ UCCJEA § 207

WomensLaw.org strongly recommends that you talk to someone in a local domestic violence agency and a lawyer to help you with this decision, if you have not already. To find a local agency or someone who can help you, click on the Places that Help tab at the top of this page.

Remember, the information on this page is just general information. Your state may have differing laws or other things you can do.

You may also want to check your state’s custody page on this site for additional information.  Go to Custody and put your state into the drop-down menu.