Child custody in the United States

Married parents generally both have full parental rights. On divorce, each state has its own custody law, but nearly all decide by the child's best interests.

The mother generally has custody. The father has rights once paternity is established, by signing an acknowledgement of paternity or by a court order, and he can then ask the court for custody or visitation.

The unmarried father, in one line: Differs by state, region or province.

The court decides, usually by the best interests of the child, and separately decides legal custody (who makes decisions) and physical custody (where the child lives). Most states encourage both parents to stay involved. A small number of states presume joint custody or equal time, and many presume nothing.

States differ. Many courts consider the preference of a child who is old enough to give one, and some states give a child of around 14 a strong say.

Rules on moving differ by state: some require notice or the other parent's agreement, others the court's approval. The Uniform Child Custody Jurisdiction and Enforcement Act decides which state's court has authority, in general the child's home state of the past six months.

There is no single American custody law. Family law belongs to the fifty states and the District of Columbia, each with its own statute and its own courts, so the same family could get a different answer in Texas and in New York. What is common to all of them is that the court decides by the best interests of the child, and that two questions come first: were the parents married, and has the father's paternity been legally established?

If the parents are married, both are the child's legal parents from birth. When they divorce or separate, the family court of the state where the child lives decides custody and parenting time under that state's statute, usually after the parents have been encouraged to agree a parenting plan.

If the parents are not married, the mother is the legal parent from birth. The father becomes a legal parent by signing a voluntary acknowledgement of paternity, which every state must offer and which is usually signed at the hospital, or later, or by a court order after paternity is proved. A father who has done neither has no enforceable rights, however involved he is. Once paternity is established, he can ask the court for custody and parenting time, and the court then applies the same best-interests test as in a divorce. A mother's husband is presumed to be the father, which is why a child born to a married woman can raise a different question.

Most states separate legal custody (who makes the big decisions on school, health and religion) from physical custody (where the child lives), and each can be joint or sole. The time the other parent spends with the child is usually called parenting time or visitation, and joint custody does not have to mean equal time.

When the parents live in different states, a uniform law adopted by nearly every state, the UCCJEA, decides which state's court has authority: in general the child's home state, where the child lived for the six months before the case began.

A few examples

California

Once parentage is established, the mother and the father are equally entitled to custody, and the law states a policy of frequent and continuing contact with both parents. A child of 14 or older must be allowed to address the court about custody and visits unless the court finds that is not in the child's interest, but the child's wish does not decide the outcome.

New York

There is no presumption in favour of either parent or of equal time. The court looks at all the circumstances to decide what is best for the child, and neither parent has a prior right. An unmarried father must first establish paternity, by an acknowledgement or a court order.

Texas

The law presumes that it is in the child's best interest for the parents to be joint managing conservators, which is a status about sharing decisions, not an equal schedule. One parent is normally given the right to decide the child's main residence. A history of family violence removes the presumption.

Kentucky

In 2018 Kentucky became the first state to presume that joint custody and equally shared parenting time are in the child's best interests. A parent who wants something different must show why equal time would not serve the child, and the presumption does not apply where a domestic violence order has been entered.

These four are examples, not a survey of all the states. State law changes, so look at the state's own family court self-help pages or statutes for the state where the child lives.

The United States is a party to the 1980 Hague Child Abduction Convention, which lets a parent ask for a child wrongly taken to another country to be returned. It works only with countries that have accepted its accession, so check the other country on the treaty status table.

• The court of the state where the child lived for the six months before the case began usually decides, so a move shortly before filing may not change which court hears it.

The United States belongs to the Common law family. Family law grows out of the legal tradition, so it helps to know how the system works.

Read the United States legal-system profile in the Legal Families Atlas →
Who owns what in a marriage in the United States? →
Divorce rate and trend in the United States →

• Child Welfare Information Gateway (US government)
• California Courts self-help: child custody
• New York Courts: custody and visitation
• Texas statutes: Family Code, chapter 153
• Kentucky Revised Statutes: KRS 403.270