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Custody refers to each parent’s role in caring for children when their adult relationship ends. This can be when married parents divorce or for unmarried parents. There are two kinds of custody: legal custody and physical custody. Legal custody is about each parent’s input into the major life decisions concerning their children (medical care, school, religion). Physical custody is about where the children will live on a regular basis. Both legal and physical custody can be with both parents (joint) or with one parent or the other (sole).

Custody in Divorce

When parents divorce, decisions will be made as part of the divorce process about legal and physical custody of the children. The parents can come to an agreement on their own or with the help of a mediator. If the parents cannot agree, the court will decide. Custody for Unmarried ParentsWhen children are born to unmarried parents, making the biological father the legal father is not automatic. There are two ways to become the legal father:

  1. By signing an Affidavit of Parentage. An Affidavit of Parentage is a legal agreement making the man who signs it the legal father. Once there is a signed Affidavit of Parentage, either the mother or legal father may file a Custody Case with the court asking for custody, child support and parenting time.
  2. By filing a Paternity Case. Either the mother, the man who believes he is the father, or the state, if the mother or child receives public benefits, can file a Paternity Case with the court asking that the man named in the case be declared the legal father. In a Paternity Case either the man can agree that he is the legal father or DNA test results will be used. Custody, child support and parenting time can be decided in a Paternity Case.

Filing a Custody Case

A custody case can be filed by the mother or legal father of a child. A copy of the Affidavit of Parentage (the agreement making a man the legal father) must be filed with the case. A custody case is a lawsuit that requires filing of certain paperwork (pleadings) with the court, payment of a filing fee, formal delivery of the pleadings to the other party (service) and following the court process to the end of the case (Judgment of Custody).

Temporary Orders

Either parent can ask the court for temporary custody, child support or parenting time by filing a Motion with the court. Temporary orders are in effect until the case is final.

How Custody is Decided

Decisions about custody of children made by the court are based upon the best interest of the children. In order to determine what is in the best interest of the children, the court uses the Child Custody Factors. The Factors require the court to consider and make decisions about different parts of the parents and the children’s lives and their relationship to each other. When a parent asks for a change of custody the court must also consider the children’s established custodial environment and whether there has been a change of circumstances.

Finalizing a Custody Case

To finish a custody case and get a final order (Judgment of Custody) decisions have to be made about custody, child support and parenting time. These decisions can be made by agreement of the parties (settlement) or by the court (trial). Resources are available to help the parties reach a settlement agreement including mediation and a settlement conference.

Change of Custody

If one parent wants to change custody in a final order (Judgment of Divorce, Judgment of Custody), that parent ask the court for a change by filing a Motion. The Motion would be filed in the case where the original Custody Order was made.When a parent asks for a change of custody the court must also consider the children’s “established custodial environment” and whether there has been a “change of circumstances.”

For Informational Purposes Only:  This summary is provided for basic informational purposes only. It is not legal advice. For legal advice about your situation, you must talk to a lawyer.
Forms & Case Packets

Download FREE “Getting Started Checklists” for: 

Other forms and case packets:

  • Case Packets (forms & instructions) for Custody, Paternity, Divorce with Children and Divorce without Children are available at the Legal Assistance Center for $20. Cash only.
  • Additional free and low cost forms, including free Affidavit of Parentage and Motion forms, are available at the Legal Assistance Center.
Additional Resources