There's no doubt that fighting for custody of a child is a parent's biggest fear. Any custody dispute can be daunting—whether you're going through a divorce, you were never married to your child's other parent, or your ex wants to change your current parenting arrangement by moving to another state with your child.
Even when you disagree with your child's other parent about legal or physical custody, you can get help if you want to avoid the expense and emotional fall-out of a battle in court. But if you do end up in court over the custody issue, it can help to know what to expect and what you should do to prepare.
Even if you hope to avoid a court battle over custody, you'll be better prepared to deal with the issue if you understand some of the basics of the law on child custody. Understanding the legal requirements—and what a judge must consider when deciding custody matters—could help you avoid pitfalls like stubbornly holding out for sole custody in a situation where it's not appropriate under state policy and laws. It could also give you strong arguments to counter positions the other parent is taking that probably wouldn't hold up in court.
The most important thing to know is that all states put the children's best interests at the forefront of any custody dispute. It's not about what the parents want—it's about what's best for the children. And the laws in many states explicitly state that it's in children's best interests to have ongoing relationships and frequent contact with both parents, unless that would clearly be harmful under the particular circumstances. That's why many (if not most) contemporary judges prefer shared parenting arrangements in which children spend a considerable amount of time with both of their parents, even if they primarily live with one.
State laws typically list a number of other factors that judges will consider when they're deciding on custody arrangements that will be best for the children. (Learn more about these specific factors and the custody laws in your state.)
Whenever you're facing a question about custody of your child or children, your first step should be to try your best to agree with your spouse on a parenting plan. You're almost always better off working out an agreement rather than leaving the decision up to a judge. Although most judges do their best to look at the facts when making custody decisions, they don't know you or your kids personally. That means they won't be able to understand the subtleties of your situation. Also, if you have to go to trial to resolve a custody dispute, your divorce will cost more, take longer, and create more stress for both you and your children..
Along with the general outlines of a parenting plan—like where the children will live—you'll need to work out details such as:
If you're having trouble agreeing about all the elements in a parenting plan, custody mediation could help you work through the obstacles and negotiate solutions. To make the best use of the process, make sure you've prepared for custody mediation and have all of the documents and information you'll need.
You should know that in many states, you may be required to participate in custody mediation if you still have disagreements on the issue by the time you've filed for divorce or another custody proceeding (more on that below).
If you're able to agree on a parenting plan, either on your own or in mediation, your next step will be to prepare and sign a written agreement. Many mediators will help with this step.
Then you'll submit your agreement along with the other paperwork when you file a custody proceeding (more on that below). A judge will usually approve your agreement and make it part of an official court order.
Note that some states have specific requirements and forms for parenting plans that will be submitted for the judge's approval. If you choose to file for divorce online, the service will typically provide you with the proper form, completed based on your answers to a questionnaire.Otherwise, you should be able to get these forms from the court where you plan to file your custody case.
If you haven't been able to reach a custody agreement, either on your own or with a mediator's help, you should strongly consider speaking with an experienced family law attorney. Custody disputes can be complicated, and most parents are ill equipped to navigate a contested custody case on their own. This is especially true when:
Learn more about when you need a custody lawyer and how to find a good one.
When you've been married to the other parent of your child or children, you'll typically request custody as part of the process of filing for divorce in your state. Otherwise, you may file a stand-alone request (usually called a petition) for a court order on custody. For instance, you might initiate a separate custody proceeding when:
If you have already have a custody agreement when you start your case, you'll generally include it with the petition and other paperwork that you file with the court clerk. Usually, you'll have to pay a filing fee.
Then you might need to serve the other parent with the petition and other documents. Usually, this means having a sheriff or private process service hand-deliver the documents. But your state might allow a simpler method of delivering the papers, especially when you're requesting custody as part of a divorce. The court clerk can tell you what's required.
It's important to file your custody request with the proper court. With a divorce, you'll need to meet your state's residency rules, which usually require that you or your spouse have lived in the state for a certain period of time. If you aren't married to the other parent, you'll usually file the custody petition in the county where the child lives.
But in any case when you're asking a judge to issue a custody order, you'll need to meet other residency requirements for your child. Under laws in all states (known as the Uniform Child Custody Jurisdiction and Enforcement Act), judges generally don't have jurisdiction (legal authority) to issue initial custody orders unless the child has lived with a parent in the state for at least six consecutive months just the petition was filed.
There are exceptions to this general rule, including during emergencies when a child is in danger. Also, the rules are somewhat different when you're asking a court in one state to modify another state's custody order. So if you have any questions about where to file a custody petition, you should speak with an experienced family law attorney.
When you've been named as the other parent in a custody case, it's important that you respond promptly as soon as you've been served with the court documents. There will be a form with the paperwork (usually called a summons) that will tell you how much time you have to file a response with the court—typically between 20 and 30 days.
If you weren't married to the other parent and don't believe the child is yours, you may ask for a DNA test. But if you were married to the other parent when the child was born or conceived, the law in most states will presume that you're the child's parent—unless you can prove otherwise in court.
Married or not, if you don't act in time and file an answer to the petition, you'll generally lose the right to request a DNA test—or simply to have your voice heard about the custody arrangement you feel is best.
If you've filed a custody request and aren't married to the child's other parent, you might need to get a court order establishing the child's paternity before a judge will issue any custody orders—unless the father signed a voluntary declaration of paternity when the child was born. You can usually get free help with establishing paternity from your state's child support enforcement agency, or you can file a request directly with the court.
The next steps in your case will depend on several factors, including:
If you've filed a complete custody agreement along with your initial paperwork and all the other required documents, you may not have to go through any other steps until a final hearing. At that hearing, the judge will usually look over your paperwork, ask you a few questions, and sign the custody order.
And some states won't even require you to appear in court when you've requested custody as part of an uncontested divorce. A judge will review the agreement and—unless there's a problem—sign the order.
As we mentioned above, once you've started the legal case, a judge might order you to mediate your custody disagreements. In some states, this mediation requirement is automatic in all court cases that involve custody disputes. Usually, you'll be eligible for free or low-cost custody mediation services through the court when you've been ordered to attend.
You won't ever be required to agree to anything during mediation—just to participate in the process. But if you do reach an agreement that covers all the issues in your case, you'll be able to skip to the final hearing.
Unless you've managed to reach an agreement before or soon after you've filed for child custody, you and the other parent will generally be required to attend an initial court hearing, conference, or other meeting to evaluate your case. Sometimes these initial conferences will be handled by court personnel other than judges, such as a commissioner or magistrate.
In these early hearings, judges may issue preliminary orders on issues such as:
At some point during the proceedings, judges might also interview children to see if they're able to express a reasonable preference about custody and visitation—and, if so, whether they have an opinion about which parent they want to live with most of the time. Alternatively, judges might get this information from court-appointed custody evaluators or other investigators.
Before a custody case actually gets to the trial stage, there are often other interim court hearings as the parents—and their attorneys—hash out various disagreements over evidence and other problems that crop up.
Most parents eventually manage to settle their custody disputes before going to trial. That way, they have more control over the outcome of their case than if a judge—a complete outsider who doesn't know their children—dictates their parenting arrangements.
But if you haven't been able to reach an agreement, you'll need to prepare for trial.
For the vast majority of parents, it would be extremely unwise to attempt to represent themselves in a custody trial. Experienced family lawyers know how to prepare and present the kind of evidence that's likely to persuade the judge. (In almost all states, family law cases are never tried before a jury.)
Attorneys should know the local rules of evidence, applicable laws and past court rulings, and the tendencies of the judge assigned to the case. They may also bring in expert witnesses to help strengthen your position—such as therapists, doctors, or your own custody evaluator to counter what the court-appointed investigator recommended.
Your attorney will make sure that you have all the documents, evidence, and witnesses needed to support your custody request. You should also talk with your lawyer about what to expect and how to behave in the courtroom. You might even practice some possible scenarios with role-playing, so that you won't be blindsided by unexpected accusations from the other parent. It's important that you show the judge you can remain calm and reasonable, even in the face of difficult emotional issues.
During the custody trial, the judge will allow both parents (through their lawyers, when they have them) to present their case on why their proposed parenting plan is in the best interest of the child or children. This will include written evidence (which is typically submitted to the court ahead of time), testimony from expert witnesses and others who have direct knowledge about the specific parent-child relationships, and testimony from both parents.
In particularly complicated cases, the trial may extend over more than one day—often with time intervals between the hearing dates.
In some cases, the judge will make a decision and issue a custody order at the conclusion of the hearing. In others, you'll need to wait for a written order to arrive in the mail. If you have temporary orders in place, you must continue to follow them until you receive the new one.
If you're unhappy with the judge's decision, you may appeal the order. But you only have a short amount of time to do this. If you want to file a formal appeal, speak to an attorney right away to find out if you have valid reasons to appeal and, if so, how to start the process.
If you want to make a change in your parenting plan after a judge has issued a custody order, you and the other parent may sign an agreement to the change and submit it to the court for approval. Without an agreement, you'll need to follow the rules in your state for requesting a custody modification. Typically, you must prove that there's been a substantial change in circumstances since the previous order was issued. Often, parents request custody modifications when one of them is planning to move away with the child.
If following the current parenting plan puts your child in danger—for instance, if the other parent is physically abusing or neglecting the child—you may file an emergency request to change custody.