How to File for Child Custody

Child's hand in adult's

Although the specific procedure for filing for child custody differs in each state, it usually consists of filing a formal request with a family law court and appearing before a judge. You must provide evidence showing that you are capable of and entitled to custody.

Step One: Consider the Best Interests of the Child

In making a custody decision, family courts consider the "best interests of the child." This standard requires the court to identify the child's emotional and physical needs and determine the custody arrangement best suited to satisfy them. Consider what your child needs as well as whether and how you are able to fulfill them. You will need to provide this information to the court in your custody petition.

Step Two: Review Your State's Laws

The next step in filing for child custody is to determine whether you are eligible for it. Your state's code contains the specific rules about entitlement to custody, types of acceptable custody arrangements, rights of the custodial and non-custodial parent and the process for obtaining sole custody. Your local clerk of court and legal aid offices can direct you to your state's laws.

These rules tell you what you can legally ask for and what documents you must provide to support your request. They will also tell you what you must state in your petition.

Step Three: Identify the Appropriate Court

Most states assign child custody cases to the family court division. The specific court where you file your request depends on whether you were previously or are currently involved in a divorce case, or not associated with one. If you are involved in a divorce, the court currently handling that case also determines custody. If your divorce was previously finalized and you seek to change its custody arrangement, the court that entered the final judgment of divorce reviews your request. If you are not involved in a divorce, you file your petition with the family court clerk of court. The clerk will open a new case file and assign it to a judge.

Step Four: Consider Your Relationship

One of the most important aspects of filing for child custody is whether the other parent is going to oppose your request. If you believe that the other parent will not oppose your request, obtain their consent in writing. This document can be titled "Consent of Parent to Child Custody Arrangement", or something similar. It should include a statement that the child's other parent agrees to your having custody.

Opposition from the other parent does not mean that the court will deny your request, but instead that you must provide it with more information and supporting documentation. This additional information will assist you in demonstrating that you should have custody.

Step Five: Draft Your Petition

Your custody request should be titled "Petition for Child Custody". Include your full name, contact information, current employment information as well as the child's name and age. You should clearly and concisely state that you seek custody, the type of custody arrangement you want and that state law permits you to have custody. Provide the name and case number of the prior or current divorce case associated with your petition, if any.

Next, provide the court with your reasons for seeking custody. Examples of valid reasons include the absence of the other parent, the child's attachment to you, the other parent's consent and the other parent's physical or emotional abuse of you or the child.

Step Six: Attach Necessary Documentation

Include any documentation supporting your request or showing the other parent's consent to your petition. These documents may include criminal background checks, prior custody arrangements and any associated court records.

Step Seven: File Your Petition

To have your case heard, you must file your petition with the clerk of court. The clerk will incorporate it into your divorce file, if necessary, and give it to the judge. You may be able to file your petition electronically, but not all courts offer this option. If the court does not accept electronic filings, you will need to mail, fax or hand deliver your petition.

Step Eight: Attend the Hearing

If the other parent agrees to the arrangement, the court will likely grant your petition without a hearing. If, however, the other parent does not consent, the judge will schedule a hearing. During the hearing, the court will obtain information from both parents, review the petition and any supporting documentation and either grant or deny your petition.

The clerk will add the court's final order on your petition into your file. If you disagree with the judgment, you can appeal to a higher court.

Obtaining Legal Advice

Seek legal representation if you are unsure about what to include in your petition. A lawyer will review your case and assist you in drafting your request and presenting it to the court.

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How to File for Child Custody