Can Someone Have Sole Custody if the Other Parent Abandoned?

By Beverly Bird

In most states, sole custody means that you have both legal and physical custody of your child -- she lives with you full-time and you make all decisions regarding her upbringing, education and health. If her other parent abandons you -- and by extension, your child – this automatically gives you de facto custody, which means you’ve got custody in practice, if not by court order. You can use this to your advantage to gain sole custody in your divorce decree as well.

Abandonment as Divorce Grounds

Unless your state is a “pure” no-fault state, meaning that it does not recognize fault grounds at all, you can file for divorce based on abandonment or desertion. In doing so, you establish with the court that your spouse walked out on his child when the marriage ended, leaving you with full responsibility for raising her and caring for her. This will usually influence a judge’s custody decision when he grants your divorce, if you can establish that your spouse has had no contact with his child since he left. You can also file a motion asking for temporary custody as soon as you file for divorce, to further cement your de facto custody status. This order will pend until your divorce is final and the court creates a permanent custody order. Courts don’t like to uproot a child from one home to another without good cause simply because her parents are divorcing. The longer your child is in your care, the more likely it becomes that sole custody will be granted to you.

Divorce by Default

If your spouse has abandoned you and your child, it’s possible that he might not participate in the divorce process at all. He might not respond to your divorce petition or complaint when you arrange to have him served with it. Your spouse has a short period of time in which to file a response to your complaint with the court, usually less than a month. If he does nothing, you can ask the court to grant you a divorce by default. If you asked for sole custody in your divorce petition, you’ll invariably receive it when your divorce is final because your spouse has done nothing to contest it.

Custody Modifications

If your spouse abandons your child after your divorce is final, you also have recourse. For example, your divorce decree might award you joint custody, but after the litigation is over, your ex may not make any effort to communicate with your child or to exercise his right to parenting time. In this case, you can file a post-judgment motion with the court, asking the judge to change your joint custody order to one that gives you sole custody. If your ex has not maintained any contact at all with his child post-divorce, this will usually influence the judge. The situation should also be of some significant duration. For example, you’ll probably be more successful if he hasn’t contacted his child in a year or more than if you file for a custody modification after only a month or so.

Child Support

If your ex both disappears from his child’s life and refuses to pay child support, this is a criminal offense in some states. For example, Georgia will issue an abandonment warrant for his arrest if you ask for such relief after he has not financially provided for his child for a period of at least a month. Most jurisdictions also subscribe to the Uniform Interstate Family Support Act. So if your divorce decree includes a provision for child support and you think your ex may have left your state, courts in other states will help you look for him and enforce your child support order. You can usually include a request for enforcement of the child support provisions of your decree when you ask the court to modify custody.