How to Transfer Child Custody Without a Lawyer

Learn more about transferring custody.

By , 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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