Mothers work hard to provide guidance to their children and protect them. And mothers deserve the same guidance and protection when it comes to their legal rights as parents. If you’re a mother, custody rights in your state may shape your parenting and relationships. This article gives a basic overview of custody rules and matters a mother may face in the legal system. But remember that custody laws may differ based on where you live and the status of your relationship with your child’s other parent.
Key Takeaways:
- In general, family courts make decisions about which parent will have the authority to make important decisions about a child’s life (legal custody) and where a child will live (physical custody). Courts may decide to grant parents joint custody on all matters or sole custody on all or some matters, depending on what’s in the child’s best interest.
- A mother might receive sole custody if they were unmarried when their child was born and the other parent has not obtained a court order declaring their parentage.
- Many courts seek to give custody rights to both parents. However, a court might grant full custody to a mother if the other parent poses a threat to the child’s safety or if full custody would be in the child’s best interest.
Custody basics
There are typically two types of child custody: legal custody and physical custody. Your state may have different names for these types of custody. For instance, Texas law refers to physical custody as “possession” and legal custody as “conservatorship.” Now, let’s go over what these terms mean.
Legal custody
Legal custody covers a parent’s right to make decisions about important matters in a child’s life. These matters may include:
- Education
- Religion
- Health care
Physical custody
Physical custody is a more straightforward concept. The term typically covers where a child lives.
A mother requesting custody rights might receive sole legal or physical custody of their child, or they may have to share either type of custody with their child’s other parent. In most states, these custody matters boil down to what is in the child’s best interest.
A mother’s custody rights compared to the other parent
In general, states across the country don’t show favor to mothers over fathers or fathers over mothers in custody matters. Parents of a child normally have equal custody rights in family court. However, this balance may change when a mother gives birth to the child in question and wasn’t married to the other parent at the time of birth or conception.
Pro tip:
Take a moment to think about each type of child custody in your state and what arrangement you want or need for each type. You might discover that allowing your child’s other parent to have greater legal or physical custody rights works best for everyone involved. If you and the other parent can agree on some or all custody matters, you may save yourself a significant amount of court time.
An unmarried mother’s custody rights
An unmarried mother who gives birth to the child in question might automatically receive primary physical and legal custody. But this grant of primary custody may quickly change once a court recognizes the other parent as a parent. A parent who didn’t give birth to their child and wasn’t married to their child’s mother may prove that they are their child’s parent by:
- Having the mother voluntarily acknowledge them in a signed statement
- Receiving confirmation of parentage through scientific or genetic testing
Often, the other parent must submit a petition to the court and one of the types of evidence listed above to establish parentage. After filing petitions to establish parentage, the person seeking to establish their parentage must have the mother personally served with notice of court proceedings. Once that person establishes their rights as a parent, they have parental rights equal to those of the mother, and they may ask the court to enter custody orders in their favor.
The best interest of the child
In cases involving married and unmarried parents, the child custody standard for courts around the country is the best interest of the child. The principle of the best interest considers multiple factors that aim to ensure the child’s safety, stability and emotional well-being.
Some of the best interest factors courts consider include:
- The child’s relationship with each parent
- Whether either parent has a history of substance misuse
- The child’s needs
- Each parent’s preference
- How close the parents live to each other
- Each parent’s ability to meet the child’s physical, mental, emotional and developmental needs
- How well the child has adjusted to their home, school and community
- Each parent’s living situation
- The child’s relationships with siblings or other important individuals in their life
- Each parent’s age and health
- The child’s preference
- Each parent’s capacity and willingness to cooperate with the other
- Whether either parent has a history of domestic violence, abuse or neglect
While many courts seek to encourage a child’s relationship with both parents, a mother may win full custody by proving full custody is in the child’s best interest.
How to get full custody of a child as a mother
As explained above, when it comes to how to win child custody for mothers, proving that full custody is in the child’s best interest is the standard in most states. And the process for receiving a favorable custody order normally begins with filing a custody petition with the court.
How can a mother file for custody of their child?
To start their custody case, a mother must choose a court in a state that has jurisdiction over the matter. A state might have jurisdiction if it’s your child’s home state or if it was your child’s home state within six months before your custody filing.
Submit a custody petition to the court
After you identify the right court for your custody filing, you may open your case by filing a petition for custody. Your petition might require you to provide:
- Information about your children, including their dates of birth and current and past living arrangements
- Background and contact information for you and your child’s other parent
- Information about any past or current custody cases affecting your child
- Any custody agreements you have entered with your child’s other parent
- Details about the type of custody arrangement you want from the court
If you’re married to your child’s other parent and are planning to divorce, your custody case may be part of your divorce case.
Keep in mind that you will likely have to pay a fee to file your custody or divorce petition, which could cost hundreds of dollars. You may be able to avoid filing fees in your custody case by submitting a fee waiver request that includes information about your income and financial resources.
Serve the other parent or other parties with your petition and court summons
In most states, a custody case isn’t open until the parent who files the petition serves the other parent with the petition and a summons. Your state’s service rules might require you to have someone who is at least 18 and not a party to your case personally deliver your custody filing and a court summons to the other parent. The person who completes the service may have to file a sworn statement about the service with the court.
Pro tip: Before starting your case, take time to go over all the states that might have jurisdiction to handle your child custody matter. One state might have more favorable custody laws than the other and might be a better environment for your child.
Navigating the custody proceedings
After you open your case, you and the other parent may come to an agreement about giving you full custody. If the other parent agrees to give you full custody and the agreement is in the best interest of your child, the court may grant you full custody without holding a lengthy hearing. But if you can’t come to a consensus with the other parent, you will likely have to attend a trial and present evidence and arguments to prove your custody request is in your child’s best interest. And after you receive an initial custody order, you may be able to modify it by proving to the court that there has been a substantial change in circumstances and that a change would be in the best interest of your child.
Evidence
The evidence you might have to present to obtain the custody arrangement you want could include:
- Police records
- Medical reports
- Witness testimony
- School records
- Pictures
- Recordings
- Property records
- Child welfare records
Restriction of the other parent’s custody
Every case is different, but a court might be more inclined to grant you full custody if the other parent has a history of child neglect, substance abuse or family violence. In fact, a mother may be able to quickly restrict the other parent’s custody rights if the mother files an emergency motion regarding custody and proves that their child is at immediate risk of harm when with the other parent.
Pro tip: If you have ongoing concerns about the parenting abilities of your child’s other parent, keep running notes about what worries you. This may help you quickly draft an affidavit regarding your concerns if you ever have to file an emergency motion to restrict the other parent’s custody.
Relocating with your child
The court might also allow a mother with primary custody to move far away from the other parent if the mother can prove the move is in the child’s best interest and wouldn’t improperly interfere with the other parent’s relationship with the child. What counts as a “far away” move depends on your state’s laws. For example, Florida and Tennessee define a relocation as a move of more than 50 miles. Indiana requires relocation proceedings when a move is greater than 20 miles.
A mother may have to file a relocation petition with the court, notify the other parent about the proceedings and attend a hearing to receive permission to relocate. If a mother doesn’t take these steps before moving with their child, they could be subject to contempt sanctions that could include losing custody of their child.
How an attorney can help
If you’re a mother seeking custody of your child, you may go it alone, but you may also ask an attorney for help. A lawyer may be able to help you identify your legal options for a custody order. A lawyer may also assist you with gathering evidence and making arguments regarding your child’s best interest.
Sources
Statute | Kansas State Legislature (kslegislature.gov); Section 93-5-24 – Types of custody awarded by court; joint custody; no presumption in favor of maternal custody; access to information pertaining to child by noncustodial parent; restrictions on custody by parent with history of perpetrating family violence; rebuttable presumption that such custody is not in the best interest of the child; factors in reaching determinations; visitation orders, Miss. Code § 93-5-24 | Casetext Search + Citator; FAMILY CODE CHAPTER 153. CONSERVATORSHIP, POSSESSION, AND ACCESS (texas.gov); FAMILY CODE CHAPTER 153. CONSERVATORSHIP, POSSESSION, AND ACCESS (texas.gov); https://casetext.com/statute/colorado-revised-statutes/title-14-domestic-matters/dissolution-of-marriage-parental-responsibilities/article-10-uniform-dissolution-of-marriage-act/section-14-10-124-best-interests-of-the-child; https://nycourts.gov/courthelp/family/bestInterest.shtml; Care, Custody, and Support of Minor Children (oscn.net); FAMILY CODE CHAPTER 153. CONSERVATORSHIP, POSSESSION, AND ACCESS (texas.gov); Section 3109.042 – Ohio Revised Code | Ohio Laws; NRS: CHAPTER 126 – PARENTAGE (state.nv.us); CSS Establishing Parentage 2023 update (state.co.us); capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0571/HRS_0571-0046.htm; § 20-124.3. Best interests of the child; visitation (virginia.gov); 25-1031 – Initial child custody jurisdiction (azleg.gov); General Law – Part II, Title III, Chapter 209B, Section 2 (malegislature.gov); GF-17.pdf (nycourts.gov); STATE OF SOUTH DAKOTA (sd.gov); List of Fees | Colorado Judicial Branch; ClerkofCourtsFeeSchedule.pdf (sd.gov); FW-001 Request to Waive Court Fees (ca.gov); FeeWaiver.docx (live.com); https://www.courts.ca.gov/documents/fl330.pdf; JDF 1014 – Return of Service (coloradojudicial.gov); FA-4170V;Notice of Motion and motion to Change:Custody/Physical Placement/Support/Maintenance/Arrears Payment (wicourts.gov); FAMILY CODE CHAPTER 156. MODIFICATION (texas.gov); Chapter 815j – Dissolution of Marriage, Legal Separation and Annulment (ct.gov); Emergency Custody.pdf (cheathamcountytn.gov); Statutes & Constitution :View Statutes : Online Sunshine (state.fl.us); Section 36-6-108 – Parental relocation, Tenn. Code § 36-6-108 | Casetext Search + Citator; IGA | 2020 Indiana Code
