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Child Custody and Visitation

Legal Disclaimer: The following is basic legal information, provided as a public service by Wyoming’s lawyers. The information provided is not a substitute for speaking to an attorney. Only an attorney can give you legal advice regarding your specific situation. Click here for help finding a lawyer.

If parents are seeking a divorce, the issue of custody will be decided as part of the divorce. If there is no marriage relationship between the parties, the issue of custody may be brought before the Court as a paternity or parentage action. Either way, parents have to make plans for where their children will live and how much time they will spend with each parent. These are called custody and visitation arrangements and they are included in the Decree of Divorce or Order Establishing Child Custody and Visitation entered by the judge. An overview of Child Custody is available here.

What are some benefits of getting a custody order?

Some people decide not to get a custody order because they don't want to get the courts involved. They may have an informal agreement that works well for them or may think going to court will provoke the other parent.

A custody order can give you:

  • The right to make decisions about your child (legal custody)
  • The right to physical custody of your child (to have your child live with you)

If you decide not to get a custody order, then you and the other parent may be considered to have equal rights to the child. The only way to change the equal right to make decisions about your child and to have your child live with you is by filing for custody of your child with the court.

While there are many benefits to having a custody order, you may be able to get a child support order without having to get a custody order first.

(Information from Womenslaw.org)

Without a custody order, what rights do I have?

Married parents have equal rights to have custody of the child unless a court has ordered otherwise. It is always better if parents can agree to custody and visitation issues but if there is no court order, you won’t be able to enforce any agreement you may have with the other parent.

If the parents aren’t married and paternity has not been established, the mother is considered to have custody and the father will have no custody or visitation rights. If paternity has been established by signatures on a birth certificate affidavit or when the court has entered a child support order (often handled by Child Support Enforcement Services), custody might have been granted by the law to the parent who is the child’s physical caretaker, even though no court order says so. If paternity has been established and there is no law or court order giving one parent custody, both parents may be considered to have equal rights to custody.

If you have filed for a divorce and reached even a temporary agreement with the other parent about custody and visitation, it is a good idea to have the judge approve the agreement and make it a court order.

Can I represent myself in a custody dispute?

Yes, but it is a good idea to get a lawyer. If the other parent has a lawyer, you probably will need one.

How is custody (the legal responsibility for caring for a child) decided?

  • The parents make their own plan;
  • The parents use a mediator to help them make a plan; or
  • The judge decides.

Courts prefer parents make their own child custody and visitation plan. Divorce can affect children differently and when the parents are able to work together, it will often lessen any negative impacts on the children from the divorce.

You and the other parent may choose, or the judge might order both of you to participate in family law mediation. In general, mediation means one or more private counseling sessions in which a trained person tries to help you and your spouse reach an agreement about your children. A separate mediation orientation is sometimes required as a first step and is where the mediation process is explained.

When mediation is required, a waiver of the requirement can be requested if there is a good reason such as domestic violence. You also can talk to the mediator about abuse. Mediators should take the domestic abuse into account when deciding whether and how to mediate a case.

What factors does the judge consider when deciding child custody?

Whenever a court makes a child custody determination, it must weigh whether its decision will be in the "best interests" of the child. Although there is no one definition of "best interests of the child," the term generally refers to the thought that courts undertake when deciding what type of custody and visitation order will best serve a child as well as who is best suited to take care of a child. Courts will consider a number of factors about the child and the child’s caregivers, with safety and the overall welfare of the child being priorities. Some factors the court considers in determining the best interests of a child are listed below.

In determining the best interests of the child, the judge considers many things, including the following factors:

  • The quality of the relationship each child has with each parent;
  • The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for each child's care by others as needed;
  • The relative competency and fitness of each parent;
  • Each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times;
  • How the parents and each child can best maintain and strengthen a relationship with each other;
  • How the parents and each child interact and communicate with each other and how such interaction and communication may be improved;
  • The ability and willingness of each parent to allow the other to provide care without intrusion, respect the other parent's rights and responsibilities, including the right to privacy;
  • Geographic distance between the parents' residences;
  • The current physical and mental ability of each parent to care for each child;
  • Any other factors the court deems necessary and relevant.

Not any one of the above factors will necessarily determine the best interest of the child.

Does the gender of the parent matter in custody cases?

In Wyoming, courts determine custody on the basis of what's in the children's best interests and the court does not award custody to one parent over the other based solely on their gender.

Can the court consider evidence of domestic violence and child abuse when determining the best interest of a child?

Yes, the court should consider evidence of domestic violence or child abuse when determining a child’s best interest and a custody and visitation plan that will best protect the child from harm.

If you are a victim of domestic violence, please see the domestic violence section under “Protection from Abuse” or visit the Wyoming Coalition Against Domestic Violence and Sexual Assault website for information on resources available in your community.

Supervised Visitation Programs: Information for Mothers Who Have Experienced Abuse. (PDF) Information about supervised visitation programs for mothers who are afraid of their children's father or were abused by him.

By Family Violence Prevention Fund

What types of custody are there in Wyoming?

Custody may include any combination of joint, split or sole custody, though when custody is not agreed to by the parents, it is highly unlikely a court will order joint or shared custody in Wyoming as the courts recognize that such an arrangement requires the parties to work together. Gurney v. Gurney, 899 P.2d 52 (Wyo. 1995).

Physical custody: Some refer to physical custody or residential custody as belonging to the parent with whom the children live for most of the time.

Legal custody: If a parent is given legal custody that generally means that is the parent who makes the important decisions about things like schools and medical care. It is best when parents can work together. If the parents can get along, both parents can share legal custody.

How can custody be set up?

There are three main ways custody can be set up:

  1. Sole, physical or primary custody
    • One parent gets physical custody of the children. The other parent gets visitation rights. The parent who does not have physical custody sees the children on a schedule made by the parents (if they can agree) or by the judge (if the parents cannot agree). This is the arrangement in most cases.
    • Supervised visitation: If there is a reason, the court may order another adult be around during these visits to keep the children safe.
  2. Joint or shared custody, this may work in one of two ways:
    • Both parents share physical and legal custody. The children spend a substantial amount of time with each parent overnight and each parent has an equal say in making decisions about the children. Both parents must be able to cooperate for joint custody to work. If joint custody does not work, the court can change the arrangement and award primary or physical custody to one parent; or
    • Both parents get legal custody but only one parent gets physical or primary custody. The other parent gets visitation rights. This is also very common.
  3. Split Custody
    • If there is more than one child, each parent gets custody of at least one child; one or more children live with one parent and one or more children live with the other parent. The burden for proving that such an arrangement is in the children’s best interests is on the parents.

When is visitation ordered?

Visitation is ordered depending on the type of custody order that the court issues. The court may order visitation when it finds it in the best interests of the child. Visitation orders must be very detailed in order to help understanding and compliance.

Who pays for transportation to and from visitation?

This varies and the court has a lot of discretion about how to order that costs of transportation be paid. The court may order that the parents share the costs of transportation or may order one parent to pick up the majority of the expense.

How do I know if a Wyoming court can decide my child custody case?

If this is the first time you have been to court for child custody issues, then a Wyoming court can decide your child custody case only if your children have lived in Wyoming for 6 months or if it has emergency jurisdiction. This is called the “home state rule” and there may be some exceptions.

If I am not married to the other parent of my child, how can I get a court to give me custody of my child?

If paternity has already been established (see more information in the Paternity section), you can file a lawsuit to get a court order that will establish custody as well as visitation and child support.

In some cases, you may want to ask for a temporary order that gives you custody until a final order is entered.

If you are afraid of the other parent because of physical abuse or threats of physical abuse against you or your child, you might be able to get temporary custody as part of a Domestic Violence Protection Order.

In custody or protection order cases, the court can make custody decisions only if your children have lived in Wyoming for 6 months or if it has emergency jurisdiction.

When will Wyoming decline hearing a child custody case?

Wyoming courts may decline to hear custody cases if a parent has wrongfully taken the child from another state.

What if my spouse and I can’t agree about custody of our children?

In Wyoming, courts are reluctant to order joint physical custody unless both parents agree to it and they appear to be sufficiently able to communicate and cooperate with each other.

What is a Guardian ad Litem? Why is a person appointed to represent the best interest of a child?

In some cases, a guardian ad litem (GAL) may be appointed to represent the child’s interests which generally means defending and promoting an environment that best encourages and protects the child’s physical, emotional and social growth. As protector of the best interests of the child the responsibilities and duties assigned to the guardian ad litem can vary according to each child. The court should specify the terms of appointment, including the guardian’s role, duties and scope of authority.

Can the court require the parents to attend parenting classes?

Yes, the court can require either parent or both parents to attend parenting classes. These classes may include, but are not limited to, classes that teach parents how to lessen the effects of divorce on the children. Some courts have their own orders listing the names of individuals or agencies that conduct parenting classes in your community. Both parents are generally required to attend classes when they are ordered.

What happens if one parent doesn’t allow the other parent to have court ordered visitation?

You can file a Motion for an Order to Show Cause to make the parent who is not allowing the visitation explain to the court the reasons for not doing so. A court may find that parent in contempt of court if it is found that he or she willfully disregarded the court’s order on visitation. In Wyoming, proof of repeated, unreasonable failure by the custodial parent to allow visitation to the other parent in violation of an order may be considered as evidence of a material change of circumstances sufficient to modify custody.

If I have legal custody, do I have to tell the other parent that I’m moving?

The court may require either parent who plans to move to another city or state of residence, to give written notice to the other parent and to the court thirty (30) days prior to their move. This is because there may be other issues surrounding the relocation of a parent, including the necessity of modifying the terms of visitation.

Can custody be modified or changed?

Yes. Custody may be modified by either parent if the parent can prove that there has been a substantial and material change in circumstances that requires modification, and that the modification would be in the best interest of the child. If a custody order from another state is involved, please see the information below on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

What if child custody was already decided in another court?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) determines when State courts can make and modify or change “child-custody determinations,” which includes custody and visitation orders. The UCCJEA does not apply to child support cases.

If a custody order was entered in another State, that State has what is called exclusive, continuing jurisdiction to modify. This means no other State may modify the custody order from another State—even if the child moves and establishes a new home State unless the original state loses jurisdiction or declines to exercise it. This usually happens when the noncustodial parent stays in the original state and the custodial parent and child move away. Interstate child custody jurisdiction rules are complicated. If you have questions, it is recommended that you contact a lawyer for more information.

If the parent with custody moves to another city or state is that a material change is circumstances?

Maybe. The Wyoming Supreme Court has held that a relocation by the primary physical custodian, as well as "factors that are derivative of the relocation" — including "the inherent difficulties that the increase in geographical distance between parents imposes" — may constitute a material change in circumstances sufficient to warrant consideration of the best interests of the children. Arnott v. Arnott, 293 P.3d 440 (Wyo. 2012).

Can I do anything to prevent my child from going to the other parent when I die?

The other parent usually gets custody if you die. However, if another person files for guardianship of your child after your death, the judge may consider your wishes, which are usually recorded in a Will. You can speak to a lawyer about the best way state your wishes about custody.

What are the rights of grandparents?

A court may grant visitation rights to grandparents if it finds that visitation would be in the best interest of the child, and the rights of the child’s parents are not substantially impaired.

You Are Not Alone, AARP Wyoming has compiled helpful information about grandparents’ rights in Wyoming.

What are the rights of stepparents?

In Wyoming, stepparents are not responsible nor do they generally have any rights for their stepchildren following a divorce, unless they have formally adopted those children.

What is the effect of military duty/deployment in custody/visitation?

Temporary military duty may affect custody modification in certain circumstances. For more information see Womenslaw.org. You can also look at Wyoming Statutes 20-2-205.