When can you legally ask for full custody?

No one says ‘I do’ intending to get divorced. We all want a happy family, especially when kids are involved.

However, life happens and sometimes, we have to go through a divorce. While a divorce impacts your life in many ways, one of the most significant parts, is the impact it will have on your children’s present and future.  

Generally, most courts award shared legal custody to both parents- think of it as a default legal custody agreement. That is, if both parents are relatively stable, it’s in the interest to get them involved in the child/children’s life.

However, even though having both parents involved is the ideal, sometimes, shared custody not in the child’s best interest.  

So, when can a parent legally ask for full custody? In this article, we have provided the legal reason why the court may designate one parent to captain the parenting ship.

What is full custody?

Custody means having protective care towards someone. In other words, full legal custody means having both the physical and legal right to protect your child/children.  

A parent with both legal and physical custody has exclusive rights concerning the children. This means he/she has legal responsibility and the right to make all significant decisions that affect the child’s wellbeing, including medical care, education, religious, moral, and emotional development.

Additionally, the child/children remain under the custodial parent supervision subject to a non-custodial parent getting reasonable visitation rights unless it is determined such visitation may become toxic to the welfare of the child.  

Under what circumstances can a parent be granted full custody?

A court may award full custody to one parent under extreme circumstances, where the child faces real danger from one parent. 

So, seeking full custody should be reserved as a way of protecting your child from harm and not as a way for vengeful, angry parents to punish the other spouse. 

Some notable circumstances that may lead to one parent seeking sole custody include:

  • Abuse

If one parent has a history of domestic abuse, neglect, physical assault or sexual abuse, then the court may grant the non-abusive parent full legal custodial rights. This happens, mostly, where the custody or divorce filing has been paired with police reports and restraining orders, as it obviously presents a real danger to the child.

  • Substance Abuse

Since substance abuse alters an individual mental state, any addiction prevents a person from being a responsible parent, thus endangering the child. Consequently, if a parent abuses substances, drugs, or alcohol to a point their judgment becomes impaired, and engages in behaviour such as driving the children while drunk, or shooting up drugs in their presence,  the court may grant full custody to the stable parent.  

  • Mental illness

A parent with mental illness may exhibit unpredictable and irrational behavior, which, though unintentional,  put the child in danger. 

For example, a suicidal parent should not be left unaccompanied with a child since it can become catastrophic. If this is the case, the other parent should petition for sole custody to protect the child’s physical and mental wellbeing.

  • Abandonment

Sometimes a parent may abandon their child by showing little or no interest, having no contact or  relocating without a forwarding address. 

If a parent lacks interest, it means they are not in tune with the child’s necessities and welfare. Therefore, giving such parents the right to make a child’s decision, can be risky. In such circumstances, full legal custody to the present parent may become appropriate.

How to file for full custody

  • Hire a Lawyer

Custody battles are often complicated, contentious, and lengthy affairs. To navigate the relevant state law, prepare the case, and present it before the judge, you need the expertise of a divorce lawyer.

Additionally, hiring an experienced lawyer will go far in helping you to get your petition granted, especially if the lawyer has worked on full custody cases and won.

If you decide to retain counsel, ensure you inform them of anything regardless of how small it is, that the other parent may use against you. Giving your lawyer full information about yourself helps them to prepare a better case, thus mitigating any potential damage and surprises.

  • Know the law

Learning the custody laws in your state will help you to understand the application process and the do’s and don’ts, regardless of whether you have retained a lawyer.

 Look at it this way; the more you learn and gather firsthand information, the better you will be in stating your case. Additionally, with extra knowledge you can easily ask questions and prepare your evidence according to your states jurisdiction. 

  • File the custody complaint

Before the custody case begins,you need to file a custody complaint (petition) with the court and within the state where the child physically lives. Your lawyer should guide you on the various forms to fill and the applicable filing fees.

  • Serve the other parent

After filing all the paperwork, it’s time to serve the other parent with the documents. 

This means he or she should get the copies of every document you have filed. To do this, you can employ the local law enforcement officer’s services, sheriff, private process and unrelated individuals above 21 years.

However,you can not serve the defendant with the documents yourself.

In case the defendant has an attorney, they may consent to “acceptance of service” and allow the attorney to be served on his/her behalf. 

Additionally, if the defendant lives outside the country or you can’t find them, consult with your lawyer on a possible way to serve the custody papers. 

  • Appear before the judge

At trial, present the relevant documents like medical records or police reports to prove violence and abuse, own testimony and witness statements. 

After receiving the documents, the judge will check out the submitted evidence from both parties before making their ruling.

  • Be patient

The hardest part is being patient. Many parents present their case and assume the judge will make immediate decisions. However, in most full custody cases, it takes time, and several appearances in court and before the judge before the ruling is made. Be patient and abide by the judge’s ruling.

How do you increase your chances of getting full custody?

To increase the likelihood of getting a full legal custody, you need to present a strong case and the right image before the judge. Consider factors like;

  • Putting the interest of your children first
  • Collecting enough evidence
  • Being prepared with your testimony and supporting your claims
  • Maintain a professional disposition by portraying yourself as a healthy, positive, and well-adjusted individual. This means dressing appropriately, providing precise evidence in photography, text messages, receipts, and email in a professional manner, and avoiding the blame game.
  • Be honest- Avoid making false allegations to win the custody battle; instead, opt for realistic and documented evidence to prove your case.

Conclusion

The main driver of seeking full legal custody should be providing your child with a stable home away from the unfit parent and danger. Avoid using full custody as a way to get back at your ex, ask for more child support, punish the other parent or any other self-serving interests. Remember, children benefit from having access and input from both parents and therefore, petitioning for full custody should not be done lightly.

Author: Rita Purity