Giving up custody of your child is a significant decision that's most often prompted by a major life change or challenge. For most parents, it's not an easy decision—but one they make for the sake of their child. Once you've decided it's best to hand over custody to someone else, you'll want to know how to do it properly—and whether you'll need a lawyer's help.
The procedures and requirements for transferring custody will depend on your individual situation and factors such as whether you'll be transferring custody to the other parent or to a family member or friend, whether there's an existing custody order, and whether the other parent agrees to the change.
Usually, parents sign over custody of a child to a family member or friend by establishing a guardianship. Although each state's laws are different, legal guardianship typically includes both legal and physical custody—meaning the child lives with the guardian, and the guardian has the legal authority to make decisions about the child's upbringing. But a legal guardianship doesn't terminate the natural parent's parental rights.
If you're in a tough spot in your life right now, creating a guardianship for your child might be a good option. As one court recognized, "guardianship gives parents the opportunity to temporarily relieve themselves of the burdens involved in raising a child, thereby enabling parents to take those steps necessary to better their situation so they can resume custody of their child in the future." (In re Jordan M., 820 N.W.2d 654, 660 (Neb. App. 2012).)
Guardianships can be temporary or long-term, and they (usually) can be revoked. Also, if it's appropriate under the circumstances, most courts will allow parents to visit with their children when they're living with guardians.
It's not uncommon for parents to ask a trusted family member to take care of their child, without going through a formal guardianship procedure. For example, many grandparents raise their grandchildren without a court order or even a written agreement. It's less common—but not unheard of—for a parent to informally transfer custody to someone other than a relative.
Informal guardianships can be risky, particularly if they last longer than a few weeks or months. Without a court order, the guardian usually won't have legal rights regarding the child. This means they might not be able to take important steps such as providing the child with health insurance, securing medical care for the child, or giving permission to enroll in school or participate in school events.
Still, there might be alternatives to legal guardianship in certain states that address some of these risks. For example:
If you want to get an official court order giving legal custody of your child to a relative or friend, you'll need to follow the procedures and rules in your state for creating a legal guardianship—and those rules often vary a lot from state to state.
In some states, probate courts handle guardianships, while in others a juvenile or family court might oversee the matter. Typically, the proposed guardian (or a parent) will start the process by filing guardianship papers in the appropriate court and "serving" a copy of the papers to both parents and anyone else who must receive notice of the proceeding (often grandparents and certain other relatives).
At the guardianship hearing, a judge will review all the information in the case, including any reports and recommendations from a court investigator (if that's part of the process in your state). The judge will also hear from the proposed guardian and anyone else who's there—especially the parents and any other interested people who want to attend and share their thoughts about the guardianship.
If both parents have agreed to appointing a legal guardian for their children, the process will go more smoothly (and quickly).
States might require additional steps and safeguards when a parent refuses to consent, such as requiring a full investigation. As a general rule, however, the guardianship may still go forward over a parent's objection if, after reviewing all of the evidence, the judge finds that staying or returning to a parent's custody would be harmful to the child.
Also, if the judge finds that a parent has abandoned the child, that parent's consent typically won't be required for the guardianship.
Other relatives—and anyone who has received notice of the guardianship proceeding—will also have a chance to object and to appear at the hearing to explain why they don't believe it's a good idea. Ultimately, the judge will decide whether allowing the guardianship would be in the child's best interests.
In most states, both relatives and non-relatives can be appointed as guardians. Although some courts might have a preference for the guardian to be a family member, this preference is easily overcome if it's clear that it's better for the child to be placed with someone other than a relative.
Guardianships are usually open-ended, although a court's order might provide that the guardianship will end after a certain date or after something happens. Regardless, either parent (or the guardian) may go back to the court and ask to have the guardianship terminated. Usually, a judge will grant that request if the guardianship no longer is necessary or serves the child's best interests.
You don't technically don't need a lawyer to set up a guardianship for a child, and you can often find information about the process on your state courts' website or your local court's website (look for self-help or resources pages). Alternatively, search online for terms like "legal guardian for child or minor," and read the results that are specific to your state.
You should know, though, that it can be difficult to navigate the complicated guardianship process without the help of a lawyer. If you don't follow all of your state's requirements, you could run into delays and problems—including having your request denied because of a technicality. Many parents ultimately hire a local attorney who's experienced in guardianships to help them navigate the complicated process.
If you've divorced or are legally separated from your child's other parent—or you're an unmarried parent who was granted custody of your child in a court case—you'll have a court order detailing the current custody arrangements. When the child is living with you under that order, but you want to transfer custody to the other parent, you'll need to get a new court order. That's true whether you've had sole physical custody (meaning the child lives only with you), or you have joint physical custody but want to give full custody to the other parent.
What if you don't have a custody order? Maybe you and your spouse are going through a trial separation, or you're an unmarried parent who never had a paternity or custody case. If that's true, you generally don't need to take legal steps to transfer custody from one parent to the other. If you plan to live apart for a while, however, it's always a good idea at least to have a written separation agreement that spells out your custody arrangements. And if you decide together to change those arrangements, you can amend the agreement.
Most of the time, when a custodial parent wants to transfer custody to the noncustodial parent, the two of them have agreed to the move. But it would be a big mistake to simply make the change without getting a modification from the court. You could run into problems if one of you has a change of heart. Also, parents often have to show court documents proving they have legal custody rights before they can do things like enroll the kids in school.
First, you need to put your agreement about the custody change in writing. Although you don't usually need a lawyer to get a custody modification with an agreement, it's a good idea (if possible) to have a family law attorney review your agreement to make sure you understand the legal and practical implications.
Then, after both of you sign the document in front of a notary, you'll need to submit the agreement along with your modification request.
Check with the court clerk's office to learn how to file your request and agreement. The courts for many states and counties also have online forms and instructions for filing custody modification requests.
Most custody battles involve parents who are each fighting to keep the kids or to have more parenting time than they've been allotted. But what if you've made the painful decision that it would be better for your child to live with the other parent—and that parent refuses to agree to the change? In that unlikely situation, you'll need to file a motion (a formal written request) in court to modify the existing order. In your motion, you'll outline what the new proposed custody arrangement would look like.
As part of the process, the child's other parent will have the opportunity to respond to your motion. Unless you work out a compromise at some point in the legal process, a judge will hold a hearing, consider the evidence presented by both sides, and decide what would be best for the child.
State laws on child custody have different criteria judges must use when they're making a decision on whether to grant a modification request. Typically, however, you'll need to prove that there's been a significant change in circumstances since the existing order was issued, and that the proposed changes is in the child's best interests. A significant change in circumstances is something more than a minor adjustment in your life or the child's schedule.
Note that if a judge has issued a temporary custody order while your divorce case is in progress, you'll still have to request a change in that order (even if it was based on your agreement) to transfer custody. The requirements for changing temporary orders are usually less strict, however.
The procedures and requirements for a contested custody modification can be difficult to navigate without a lawyer's help. If at all possible, you should speak with an experienced family law attorney who can evaluate your case and help you gather and present the kind of evidence you'll need to support your request.
Transferring custody by appointing a guardian or modifying a custody order isn't necessarily permanent. You may always go back to court to ask a judge to end the guardianship or modify custody again.
A permanent option is to petition a court for termination of parental rights. But voluntarily signing over all of your parental rights is a drastic move, and most courts won't allow it except as a prelude to the child's adoption, either by a stepparent or other adoptive parents. Because termination of parental rights removes all of a parent's rights and responsibilities regarding the child, judges won't take this step if they suspect that the request is motivated by temporary hardship or a self-serving reason. You can't simply turn over your kid to the state just because you want to avoid paying child support or are having trouble controlling the child.
Courts may also terminate parental rights in cases involving severe child abuse or neglect—or certain other situations when someone is unfit to continue being a parent. But judges won't take that step until it's clear there's no hope that the situation will improve.
In all 50 states, the law requires parents to support their child financially. Anytime a court issues a custody order, there must also be an order for child support. Usually, the noncustodial parent pays child support to the custodial parent (who's assumed to provide direct support by paying for food, clothing, and other expenses). So if you've agreed to modify custody by changing where the child will primarily live, your agreement must also address child support, including which parent will pay and how much. Some states require you to complete and sign a form showing the new calculation under the child support guidelines.
Even though some states allow changes in child support to be retroactive to the date when you file a modification request, it's best to continue paying the current court-ordered support until the court adopts the new order. You don't want to get stuck owing support if the judge doesn't grant your request. If you've created a guardianship for your child, be aware that most states' laws don't require guardians to use their personal funds to pay for the child's expenses. Depending on state law, the guardianship order might require both parents to pay child support to the guardian for the benefit of the child.