Physical custody refers to a child’s living arrangements.¹

Sole physical custody is when the child lives primarily with only one parent on a day-to-day basis. Joint physical custody is when there is a division of time with the child by both parents, but it does not necessarily mean the child spends equal amounts of time with each parent. The judge may also order a specific visitation schedule.

¹ D.C. Code § 16-914(a)(1)(B)

A guardian ad litem is an attorney who the judge appoints to represent the child’s best interest during the court case. The guardian ad litem is not there to represent either you or the other parent but to try to represent what s/he thinks is in the child’s best interest.

In addition to a guardian ad litem, or instead of one, the judge can appoint an attorney for the child whenever s/he thinks that it is in the best interest of the child and that the case will be better facilitated by appointing a private attorney to represent the child in a custody case.¹

¹ D.C. Code § 16-914(g)

The judge is supposed to take into account a parent’s history of domestic violence when making custody or visitation decision but many other factors will also be considered and the abusive parent may still receive custody or visitation rights.  If a judge determines that domestic violence, child abuse, neglect, or parental kidnapping has occurred, the judge should presume that joint custody (or sole custody) is not in the best interest of the child (but the abusive parent can try to present evidence to change the judge’s mind).  If the judge believes that the parent committed family violence and the judge still gives that parent custody or visitation rights, the judge has to make a written statement outlining what factors support his/her decision.¹

The judge can give the abusive parent visitation but only if the judge finds that the child and custodial parent can be protected from potential harm from the abusive parent.  It is up to the parent who committed the violence to prove that visitation will not endanger the child or harm the child’s emotional development.²  However, if the child was conceived as a result of a sexual assault against you by the abuser and he was convicted of this crime in criminal court, the law does not allow him to get custody or visitation.³  For more information, see If my child was conceived from a sexual assault, can the biological father get custody or visitation?

It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues.  For information on how to find a lawyer see our DC Finding a Lawyer page.

¹ D.C. Code § 16-914(a)(2), (a-1)
² D.C. Code § 16-914(a-1)
³ D.C. Code § 16-914(k)

A non-parent, referred to by the court as a “third party,” can file for custody or file to “intervene” in an existing custody proceeding if the parent who is/has been the primary caretaker of the child within the past three years consents to the third party being able to request custody or if one of the following conditions are met:

1. The third party is living with the child and there is an “exceptional circumstance” that makes giving custody to the third party necessary to prevent harm to the child; or
2. The third party has:
   • lived in the same household as the child for at least four of the six months immediately before s/he filed the complaint or motion for custody; or, if the child is under the age of six months, for at least half of the child’s life; and
   • primarily assumed the duties and obligations for which a parent is legally responsible, including providing the child with food, clothing, shelter, education, financial support, and other care to meet the child’s needs.¹

Note: A third party who is employed by the child’s parent to provide child care duties cannot file for custody even if s/he meets any of the above circumstances.²

Another way that a non-parent can file for custody or file to “intervene” in a custody proceeding is if the person can prove with clear and convincing evidence that s/he is a “de facto parent.”³  A “de facto parent” is someone who has taken on full and permanent responsibilities as the child’s parent and, with the biological parents’ agreement, holds himself/herself out as the child’s parent.⁴  If you think this may apply to you, please read the legal definition of “de facto parent” on our Selected D.C. Statutes page to see the requirements for proving that you are the de facto parent.

Remember, as a non-parent, even though you may have the right to file for custody based on one of the circumstances discussed above, a judge may or may not grant you custody.  A judge will look at many factors to try to decide if giving you custody is in the child’s best interest.  You can read those factors on our Selected D.C. Statutes page.

¹ D.C. Code § 16-831.02(a)(1)
² D.C. Code § 16-831.02(a)(2)
³ D.C. Code § 16-831.03
⁴ D.C. Code § 16-831.01

Custody is determined according to what the judge considers to be in the child’s best interest. The judge will consider all relevant factors, including, but not limited to:

• the child’s preference for who s/he wants to live with;
• the wishes of the child’s parent(s);
• the relationship the child has with his/her parents, siblings or any other persons involved;
• the child’s adjustment to his/her home, school, and community life;
• the mental and physical health of all individuals involved;
• any evidence of domestic or family violence;
• the ability of the parents to communicate and reach shared decisions affecting the child;
• the willingness of the parents to share custody;
• the prior involvement of each parent in the child’s life;
• the potential disruption of the child’s social and school life;
• how close the parents live from one another (for example, this would come into play if the judge were deciding whether having the kids go back and forth between the two homes would be reasonable);
• the demands of parental employment;
• the age and number of children;
• the sincerity of each parent’s request;
• the parent’s ability to financially support a joint custody arrangement;
• the impact on Temporary Assistance for Needy Families (TANF), or Program on Work, Employment, and Responsibilities, and medical assistance; and
• the benefit to the parents.¹

The court may also order each parent to submit a detailed parenting plan, outlining each parent’s position for a proposed custody/visitation schedule, and allocation (division) of parental rights and responsibilities that would be in the best interest of the child.² The judge will consider these parenting plans when evaluating the factors listed above and when making the custody decision.³

¹ D.C. Code § 16-914(a)(3)
² D.C. Code § 16-914(a-3)(2)(c)
³ D.C. Code § 16-914 (a-3)(d)(1)

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised.  If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request, although this may depend on your situation.

However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits.  We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure.  Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised.  Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate.  To find out what may be best in your situation, please go to DC Finding a Lawyer to seek out legal advice.

Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page. 

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, go to Can a grandparent or other non-parent file for custody? or talk to a lawyer.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our District of Columbia Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order and get temporary custody as part of the restraining order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.

You or the other parent can ask the judge to terminate (end) or modify (change) your custody order (or the judge can do it on his/her own if appropriate). In order to change (or terminate) a custody order, you have to prove that there has been a “material and substantial change in circumstances” and that changing or terminating the custody order would be in the child’s best interest.¹

¹ D.C. Code § 16-914(f)