Custody basics

There are typically two types of child custody: legal custody and physical custody. Your state may have different names for these types of custody. For instance, Texas law refers to physical custody as “possession” and legal custody as “conservatorship.” Now, let’s go over what these terms mean.

Legal custody

Legal custody covers a parent’s right to make decisions about important matters in a child’s life. These matters may include:

Physical custody

Physical custody is a more straightforward concept. The term typically covers where a child lives. 

A mother requesting custody rights might receive sole legal or physical custody of their child, or they may have to share either type of custody with their child’s other parent. In most states, these custody matters boil down to what is in the child’s best interest.

A mother’s custody rights compared to the other parent

In general, states across the country don’t show favor to mothers over fathers or fathers over mothers in custody matters. Parents of a child normally have equal custody rights in family court. However, this balance may change when a mother gives birth to the child in question and wasn’t married to the other parent at the time of birth or conception.

An unmarried mother’s custody rights

An unmarried mother who gives birth to the child in question might automatically receive primary physical and legal custody. But this grant of primary custody may quickly change once a court recognizes the other parent as a parent. A parent who didn’t give birth to their child and wasn’t married to their child’s mother may prove that they are their child’s parent by:

Often, the other parent must submit a petition to the court and one of the types of evidence listed above to establish parentage. After filing petitions to establish parentage, the person seeking to establish their parentage must have the mother personally served with notice of court proceedings. Once that person establishes their rights as a parent, they have parental rights equal to those of the mother, and they may ask the court to enter custody orders in their favor.

The best interest of the child

In cases involving married and unmarried parents, the child custody standard for courts around the country is the best interest of the child. The principle of the best interest considers multiple factors that aim to ensure the child’s safety, stability and emotional well-being. 

Some of the best interest factors courts consider include:

While many courts seek to encourage a child’s relationship with both parents, a mother may win full custody by proving full custody is in the child’s best interest.

How to get full custody of a child as a mother

As explained above, when it comes to how to win child custody for mothers, proving that full custody is in the child’s best interest is the standard in most states. And the process for receiving a favorable custody order normally begins with filing a custody petition with the court. 

How can a mother file for custody of their child?

To start their custody case, a mother must choose a court in a state that has jurisdiction over the matter. A state might have jurisdiction if it’s your child’s home state or if it was your child’s home state within six months before your custody filing.

Submit a custody petition to the court

After you identify the right court for your custody filing, you may open your case by filing a petition for custody. Your petition might require you to provide:

If you’re married to your child’s other parent and are planning to divorce, your custody case may be part of your divorce case. 

Keep in mind that you will likely have to pay a fee to file your custody or divorce petition, which could cost hundreds of dollars. You may be able to avoid filing fees in your custody case by submitting a fee waiver request that includes information about your income and financial resources.

Serve the other parent or other parties with your petition and court summons

In most states, a custody case isn’t open until the parent who files the petition serves the other parent with the petition and a summons. Your state’s service rules might require you to have someone who is at least 18 and not a party to your case personally deliver your custody filing and a court summons to the other parent. The person who completes the service may have to file a sworn statement about the service with the court.

Pro tip: Before starting your case, take time to go over all the states that might have jurisdiction to handle your child custody matter. One state might have more favorable custody laws than the other and might be a better environment for your child. 

Navigating the custody proceedings

After you open your case, you and the other parent may come to an agreement about giving you full custody. If the other parent agrees to give you full custody and the agreement is in the best interest of your child, the court may grant you full custody without holding a lengthy hearing. But if you can’t come to a consensus with the other parent, you will likely have to attend a trial and present evidence and arguments to prove your custody request is in your child’s best interest. And after you receive an initial custody order, you may be able to modify it by proving to the court that there has been a substantial change in circumstances and that a change would be in the best interest of your child.

Evidence

The evidence you might have to present to obtain the custody arrangement you want could include:

Restriction of the other parent’s custody

Every case is different, but a court might be more inclined to grant you full custody if the other parent has a history of child neglect, substance abuse or family violence. In fact, a mother may be able to quickly restrict the other parent’s custody rights if the mother files an emergency motion regarding custody and proves that their child is at immediate risk of harm when with the other parent. 

Pro tip: If you have ongoing concerns about the parenting abilities of your child’s other parent, keep running notes about what worries you. This may help you quickly draft an affidavit regarding your concerns if you ever have to file an emergency motion to restrict the other parent’s custody.

Relocating with your child

The court might also allow a mother with primary custody to move far away from the other parent if the mother can prove the move is in the child’s best interest and wouldn’t improperly interfere with the other parent’s relationship with the child. What counts as a “far away” move depends on your state’s laws. For example, Florida and Tennessee define a relocation as a move of more than 50 miles. Indiana requires relocation proceedings when a move is greater than 20 miles. 

A mother may have to file a relocation petition with the court, notify the other parent about the proceedings and attend a hearing to receive permission to relocate. If a mother doesn’t take these steps before moving with their child, they could be subject to contempt sanctions that could include losing custody of their child.

How an attorney can help

If you’re a mother seeking custody of your child, you may go it alone, but you may also ask an attorney for help. A lawyer may be able to help you identify your legal options for a custody order. A lawyer may also assist you with gathering evidence and making arguments regarding your child’s best interest.