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How to change child custody without a lawyer
How to Transfer Child Custody Without a Lawyer
Learn more about transferring custody.
By Melissa Heinig, Attorney
How Do I Transfer Child Custody?
It's not easy to think about, but circumstances may arise when you need to ask someone to care for your children when life gets complicated. Whether you're thinking about giving custodial authority to a family member or custody to the other legal parent, you must follow the law. If you already have a custody order from the courts, the only ways you can transfer custody are to either:
put an agreement in writing with the other parent, or
ask the court to modify your custody order.
If you're married and separating or divorcing, and you have been the child's primary caregiver, you and the other parent can agree on an informal custody arrangement until your court hearing. If you disagree or are unmarried and do not have a custody order, you may need to request temporary custody orders while waiting for the court to finalize your case.
What Sort of Documentation Do You Need to Transfer Custody?
The first step in transferring custody is to review your current custody order. If you share custody with the child's other parent, you must have permission before you change the custody arrangement.
If the other parent disagrees, you'll need to file a formal request (motion) with the court to change the order. While state law varies, most states require a parent to demonstrate that there's been a change of circumstances that would require a modification to the custody order. You'll also need to convince the court that a transfer of custody would benefit the child's best interest.
Getting a formal agreement
Whether you're transferring custody between legal parents or you're delegating authority to a family member, to do it properly and protect yourself in the future, you'll need to draw up an agreement between you and the parent or guardian. You can do this without a lawyer, but you'll need to present this agreement to the local court for a judge's approval. If you try to skip the court altogether, you put yourself at risk. More often than you'd imagine, the parent giving up custody will have a change of heart after a while and then denies there ever was any agreement.
Ensure the agreement is clear and includes provisions for the child's legal and physical custody, visitation arrangements, and child support. The agreement needs to make the important points in writing and include both parents' and guardians' names and include the child's name and birthdate. Then be sure you all sign the agreement in front of a notary public before you submit it to the court.
Do You Need a Lawyer to Transfer Custody?
Parents who are transferring custody to another biological parent do not need to hire a lawyer to complete the process. If both parents agree to all the terms of the written agreement, the court will generally accept it. However, if either parent disagrees or attempts to transfer care of their child to someone else, the process may be more complex and require a lawyer. Regardless of the circumstances, both parents will benefit from hiring independent attorneys to review any agreements and protect each parent's rights.
Do I Have to Transfer Custody to Family?
Child custody is a serious matter that only parents and the courts can decide. Parents can't allocate custody to a third party without court involvement. However, parents can delegate legal authority to a family member or friend, with the intent that the person will have physical custody and care of the child. Unless the parent or guardian went through the proper legal channels to obtain legal guardianship, the parents could revoke authority at any time.
Parents who wish to transfer custody to someone other than the child's other legal parent must go through the court system. The court will evaluate the case and only transfer custody if it's in the child's best interests.
What About Child Support?
In all 50 states, the law requires parents to support their child financially, and every child custody order contains a provision for child support. If you're transferring custody between biological parents, your agreement must include child support guidelines, including which parent will pay and how much. Some states require you to complete and sign a form separate from the custody agreement, which outlines the specific terms for child support.
If you're a parent currently paying support and you've agreed to become the child's primary caregiver, the first step is for you to forward your agreements to the court that handled your divorce or original custody case. In many cases, you can include a letter asking a judge to adopt the new agreement as a court order and request an order from the judge canceling the deductions from your paycheck. A sympathetic judge will give you what you need to take to the payroll office and cancel the child support payments. An unsympathetic judge may tell you that you need to hire a lawyer for the job. But in truth, it is a straightforward procedure, and you should be able to do the necessary paperwork.
The parent accepting custody must continue to pay court-ordered support until the court adopts the new order. Otherwise, the parent can get stuck with paying back child support, even though the parents transferred custody to the paying parent.
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Can I Modify My Custody Arrangement Without Going to Court?
The short answer to this question is "yes." You can change a custody agreement without going to court if you are able to agree with the other parent; on the modified custody agreement. You will just need to have it signed by a judge.
However, if you and the other parent cannot agree, then you will have to go to court so a judge can make the decision for you. There are a number of factors you should keep in mind when it comes to custody modifications.
Once a judge has issued a child custody order, the agreement is legally binding—meaning that unless a child custody modification has been approved by the court, both parents must abide by the terms of that agreement. However, as you may have already realized, life can change dramatically after a divorce.
Sometimes, circumstances change so significantly that a child custody modification is needed.
How Easy Is It to Change a Custody Agreement?
As long as you are able to provide evidence of a significant change in circumstance, it is fairly easy to change a custody agreement, especially if you and the other parent are in agreement. You simply need to petition the court for a modification. If your petition is contested by the other parent, however, the the issue can become complicated. This is why it is always recommended to have the advocacy of an attorney.
How to Get Full Custody of a Child without Going to Court
To get custody without going to court, both parents must come to their own agreement on custody and visitation. If you can agree on custody without a court order, then your agreement is legally binding; but the court cannot enforce it unless it is made a court order.
Another way to see your child without going to court is to work out a custody and visitation agreement through mediation; however, if you and the other parent are at odds and cannot come to a custody agreement without court, then you will need to go to court so that a judge can decide who gets custody.
Potential Pitfalls of Handling Your Case Outside of Court
If you and your former spouse are co-parenting on amicable terms, you may be tempted to work out a new child custody arrangement without going through the courts. While this is an option – as long as you and the other parent can agree on a new solution – you should be aware of the potential pitfalls:
First, you must realize that any arrangement made between you and the other parent would not be enforceable by the court: The can only enforce the original order. The other parent might wake up one day and decide they no longer want to honor the amended agreement – and, unfortunately, that would be well within their rights. If the terms of the child custody order were not legally modified by a judge, you wouldn’t have grounds to enforce the new agreement. Conversely, if you continued to operate under the new agreement without the consent of the other parent, they would have the full support of the court on their side.
The new agreement might be mutually beneficial at first, but things can quickly take a turn for the worse if one parent starts to overstep their boundaries: They may start asking for favors here and there – “Can I have Tommy for an extra weekend?” – and at first you may comply, but without structure, the old saying “Give someone an inch and they’ll take a mile” might start to ring true.
Reasons to Change a Custody Agreement
The only way to ensure that your rights are protected is to modify your custody agreement through the courts. In order to do so, you will need to provide "grounds" or reasons to modify a parenting plan. In order to change a custody agreement, you must file a petition citing that a "significant change in circumstances" has taken place.
An example of a “significant change in circumstances” can include:
One parent wishes to relocate (“move away” case)
The non-custodial parent moved closer to the other parent
The child wants to spend more time with the non-custodial parent
The custodial parent is being neglectful, abusive, or unreliable
The non-custodial parent’s work schedule has changed
Is a Handwritten Custody Agreement Legal in California?
One of the questions we frequently hear in regards to modifying custody agreements outside of court is how formal the agreement needs to be. If two parents draft and sign a handwritten custody agreement themselves, is that enough? Can it be enforced if one parent ends up not complying with the agreement?
While there isn’t anything inherently not legal about a handwritten custody agreement, we strongly advise that you do not go this route. You may attempt to submit the document, but you should not expect to rely on a handwritten agreement to hold up in court, as any party that signed it may revoke it at any time. The only written custody agreement that is enforceable is one that is properly drafted by an attorney and signed by a judge.
Do you need help petitioning the court to modify child custody? Contact Moore, Schulman & Moore, APC at (858) 492-7968. Our San Diego family law firm has more than 200 years of collective experience, so we are well-qualified to handle your case.
Custody and guardianship - Lawyer in Samara and Moscow
At any stage in the development of human society, the most natural and most optimal environment for raising a child was the family. It was she who was the most important tool for integrating the child into society, and so far there are no institutions that can replace the family in this. The upbringing of a child in the birth family most fully meets his interests. The right of a child to live and be brought up in a family is enshrined both in domestic legislation and at the international level. For example, the Convention on the Rights of the Child provides that cases of separation of a child from his parents are unacceptable, except in cases where this is contrary to the interests of the child. Priority is given to the family upbringing of children.
However, it does not always happen that a child can objectively be brought up in his own family and this will meet the interests of his upbringing and development. When a family cannot properly fulfill its social function, state assistance is needed. Thus, the law provides for the possibility of removing a child from the family in case of a threat to his life and health.
The functions of the state to protect the rights and interests of children are implemented by guardianship and guardianship authorities. To achieve this goal, the bodies are vested with a number of powers:
Identification and registration of children left without parental care;
Establishment of guardianship and guardianship over children;
Supervision of guardians, custodians, organizations that house children left without parental care;
Issuance of permits for transactions with the property of the ward;
Representing the interests of minors in relations with state and other bodies and organizations, if the actions of legal representatives of minors are contrary to the interests of children or they refuse such representation;
Actions aimed at the placement of children left without parental care, supervision of the performance by guardians and trustees of their duties in raising children transferred to them.
Guardianship and guardianship authorities are also vested with a number of powers in relation to incapacitated and partially capable citizens.
As already mentioned, the primary form of raising children is the birth family. If this is impossible due to objective circumstances, then the most desirable is the adoption of the child, since this provides him with the same legal protection of his interests as education in the birth family. However, if this is not possible, then guardianship or guardianship may be established over the child. Guardianship is established over children under the age of 14, guardianship - over minors aged 14 to 18 years. The scope of their rights also differs. So, the guardian acts in civil circulation on behalf of the ward, the trustee only gives consent to the commission of certain transactions by the ward. If guardianship has been established over a child, then when he reaches the age of 14, it is automatically replaced by guardianship.
In contrast to adoption, which is established by a court order, the decision of the guardianship and guardianship authority is required to place a child under guardianship or guardianship.
Guardianship and trusteeship is established by agreement and is paid. Certain funds are allocated for the maintenance of the child, however, the guardian or trustee has the right to spend his personal funds on the maintenance of the child.
A guardian or custodian may be appointed only with his written consent. He is appointed within a month from the day when the body of guardianship and guardianship revealed the need to establish guardianship or guardianship. If within a month guardianship or guardianship has not been established, the duties of these persons are temporarily performed by the guardianship and guardianship bodies themselves.
In practice, it is preferable that the guardian or guardian is a relative of the child, but this can be any person who has expressed his desire.
Citizens who have expressed their consent to become guardians and trustees are subject to registration. It also provides for the obligation to prepare them by educational organizations, medical organizations, organizations providing social services, or other organizations, including organizations for orphans and children left without parental care, exercising the indicated powers of guardianship and guardianship authorities.
One of the powers of the guardianship and trusteeship authorities is to examine the living conditions of a person who has agreed to become a guardian or trustee. During the examination, in particular, the following circumstances are revealed:
Personal qualities of the applicant;
The motives that prompted him to become a guardian or custodian;
Relationships with family members.
A person who has expressed a desire to become a guardian or trustee, along with other documents, must provide documents confirming his income level and health status, allowing him to fulfill the duties of raising a child.
Based on the above information, the guardianship and guardianship authority makes a decision to appoint a person as a guardian or trustee or to register a person as a citizen who has expressed a desire to become a guardian.
Before taking a child into custody, the potential guardian must personally get to know the child and establish contact with him. He can obtain information about the child, his state of health and relatives.
If a person has been appointed a guardian or custodian, an agreement is concluded with him. This agreement is paid and terminates when the ward reaches the age of 18 years.
The property of the ward is separated from the property of the guardian. The disposal of such property is possible solely in the interests of the child and with the consent of the guardianship and guardianship authority. Any transactions with the property of the ward, entailing its reduction are prohibited: donation, sale, lease, and so on. A special nominal bank account is opened in the name of the ward, where payments to the minor are to be credited. Funds from such an account are spent by the guardian without the consent of the body of guardianship and guardianship. The law also provides for the prohibition of transactions between the guardian (custodian) and the ward, with the exception of donation or gratuitous use in favor of the ward.
Thus, guardianship and guardianship is an institution designed to partially fulfill the obligations of the family in raising a minor. This form of placement is not life-long, unlike adoption, but it is able to compensate for the child's lack of a family and ensure his physical and moral development. Guardians and trustees must themselves declare their desire, and also undergo special training and examination by the guardianship and guardianship authorities. The above actions ensure that the child will live and be brought up in proper conditions. The guardian and custodian may be removed in case of non-performance and dishonest performance of their duties. If the child does not have a family, guardianship and trusteeship is an effective tool that allows them to perform their functions until the ward reaches the age of 18 years.
Sincerely, Attorney Anatoly Antonov, Managing Partner of Antonov & Partners Law Office.
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Relevance date of the material: 11/21/2018
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Children in divorce
Divorce also affects children. The child must have an official guardian and a home address. In addition, the child has the right to meet with both parents.
If you cannot agree
Right to a meeting
If there are difficulties in exercising the right to a meeting
Name of the child in case of divorce
Abduction of a child (lapsikaappaus)
If the family has children under the age of 18 and the marriage ends , upon divorce, the following issues must be agreed upon:
place of residence of the child,
who will be the guardian of the child,
how the right to meet will be organized,
If the parents have agreed on the place of residence of the child, his custody, the right to meet and alimony, then the local social department can approve this agreement. After the agreement is approved by the social department, it receives the same legal force as a court decision.
You can get more information from the social welfare office of your place of residence.
External linkYhden Vanhemman Perheiden Liitto ry
Divorce in Finland External link
Finnish English Russian Estonian
Link to the external resourceannerheimin lastensuojeliliitto
series “Divorce in the Family with Children”. , about his guardianship, the right to a meeting and alimony, you can ask for help in the form of a family dispute settlement procedure (perheasioiden sovittelu). If this procedure also fails to reach an agreement, you must file an application with the county court. When making a decision, the judicial authority will take into account the interests of the child and his own opinion. The judicial authority may also request an opinion from the social welfare office in your place of residence.
Find out about the procedure for settling family disputes with the social office of your commune.
For more information about the services of a lawyer and legal assistance, see the InfoFinland page Do you need a lawyer?.
Always consider your child's best interests when deciding where to live.
Officially, a child can only live in one place. When a divorce occurs, it is necessary to agree on which parent the child will officially live with.
In practice, a child may live for some time with either parent.
Child allowance is paid to the parent with whom the child officially resides. The child's official address also affects the housing allowance paid by Kela.
Child custody means:
managing and making decisions about the child's affairs.
The child's guardian has the right to receive information about the child's affairs from officials.
At the end of the marriage, the child's parents decide on the organization of guardianship over him. Parents may agree on joint custody or sole custody by one of the parents. Guardianship does not depend on who the child lives with. More information about sole and joint custody is available on the InfoFinland website under Single-parent families.
External link Yhden Vanhemman Perheiden Liitto ry
General care and single care External link
Right to meet
The child has the right to maintain contact after the divorce with both parents. He also has the right to meet with the parent with whom he does not live.
The right to visit may mean, for example, that the child lives with one of the parents and meets with the other parent every second weekend, and also during the holidays for a certain period of time. If the child is still small, meetings can take place during the day.
The right to visit may be so extensive that the child will live with both parents for the same amount of time. Officially, a child can have only one address. Always consider the interests of the child when making decisions.
In the event of a divorce, you can agree in advance how often the child can see the parent who will be living separately. If you wish, you can make a written agreement about the order of meetings. You can also decide that the order of the meetings will be agreed each time separately.
External linkYhden Vanhemman Perheiden Liitto ry
How to arrange an appointmentExternal link
If you have difficulty exercising the right to an appointment
If you have entered into a meeting agreement with the child, but the parent living with the child does not comply with this agreement, then the parent living apart may contact the child inspector at the place of residence of the child. The children's inspector organizes negotiations between parents.
If you think that there is a risk to the child's health and safety when meeting with the other parent, tell the social worker about it. If you have good reason to be so suspicious, you can request that social workers be present at the meeting.
Both parents are responsible for the maintenance of a child under the age of 18, even if they live separately from each other. The parent who does not live with the child pays child support to the parent who lives with the child.
For more information on child support, see the InfoFinland page Single-parent families.
Link to an external resource Elatusvelvollisten liitto ry
Information for persons receiving and paying child support Link to an external resource
Child's surname upon divorce
The child's surname does not change when the parents divorce.