There’s no doubt that fighting for custody of a child is a parent’s biggest fear. Whether you’re going through a divorce or separating from your child’s other parent, if you’re beginning the custody rollercoaster, it can be daunting.
There are several ways to resolve custody disagreements without going to court. Parents can work alone or with a mediator to negotiate a parenting plan that works best for the children and present it to the court for a judge to incorporate into a court order.
If your and your ex find it impossible to work through your differences, you can file a formal request with the court to start the custody process. This article will discuss the steps you’ll need to take to file a custody case with the court.
The first step in every custody case is for the parents to talk to each other. Custody battles are emotional, expensive, and can be detrimental to the child, so if there’s a chance that you can work through your differences and create an agreeable custody plan, you’ll save yourselves a lot of trouble.
If you've tried working with your ex, but it's impossible for you to agree on custody, you should speak to an experienced attorney. Your lawyer will discuss your case with you during your initial consultation and explain your state’s custody laws and process. A knowledgeable, local attorney should be familiar with your court's rules and procedures and how specific judges work. Once you retain the attorney, you’ll need to file your formal petition (request) for custody with the court.
Although custody procedures vary from state to state, the first step is always to file a petition (sometimes called a complaint) for custody with your local court. It’s important to file your request with the proper court, which is usually in the state where your child has lived for at least six months and in the county where you reside currently. Your attorney should know the proper place to file.
The initial custody petition must include:
Bring the original petition and several copies to your local court clerk to file. Most courts require parents to pay a filing fee, which varies depending on where you live. If you can’t afford to pay the fee, you can submit a “fee waiver,” which is a separate form where you’ll explain why you can’t pay. The judge will review the waiver and determine whether or not to waive the fees.
Once you submit the paperwork (and fee) to the clerk, you will need to complete "service" of the complaint, which means you must serve (deliver) a copy of the documents to the other parent in the case. You can hire a private process server to find the other parent and deliver the documents, or you can ask your local sheriff to do it for you.
Some states permit parents to mail the paperwork using the post office’s certified mail program. If you can’t find the other parent, you may need to ask the judge for permission to provide alternate service, like posting a notice in a local newspaper. There may be special rules for parents in the military, so be sure to check the requirements with your court before you send the documents.
Once you serve the other parent, you’ll need to file a copy of the proof of service with the court, to show that the other parent has been notified. This will start the clock on the waiting period and the time for the other parent to answer.
Each state’s waiting period varies, but most require the court to wait at least 21 days after service before holding a hearing. The waiting period allows the responding parent time to review the court documents, hire an attorney (if necessary), and respond (answer) to the petition. It’s critical that the parent served with a custody motion answer the complaint. If not answer is filed, the other parent could risk a court issuing a default judgment.
If a parent fails to answer a custody complaint within the state’s allotted timeframe, the judge may presume the parent agrees with the complaint. As a result, the court may award custody to the parent who filed for custody, but only if the proposed arrangement is in the child’s best interest.
Avoiding the default judgment process is especially important if you believe you’re not the child’s biological parent. In most states, if you were married to the other parent when the child was born, the law presumes you are the biological parent, and the only way to overcome that presumption is to provide proof in court that someone else is.
If you and the child’s other parent were never married, and you question whether you’re the biological parent, the only way to avoid legal responsibility for a child that’s not yours is to tell the court that you aren’t the parent and request a DNA test.
In most states, if an unmarried parent asks for a DNA test, the judge must order it before moving the custody case forward. If you fail to answer the petition for custody, you lose that right. You will have a much more complicated journey to proving that you’re not the child’s biological parent later, which could mean providing financial support for at least 18 years.
And if you are the biological parent, and you disagree with any part of the other parent's proposed parenting plan, you need to answer in order to have an opportunity to be heard and ask for the custody arrangement you feel is best. If you fail to answer, the judge can grant all of the other parent's requests without your input.
Depending on where you live, you may need to take additional steps before the court schedules a custody hearing. In many states, when parents can't agree on custody, a judge will order them to go through a custody evaluation. The parents will have to hire a local custody evaluator, who will make a formal recommendation to the court after an investigation, which may include interviewing the child(ren), both parents, other relatives, child care providers, teachers, counselors, and/or therapists. Once the interviews are complete, this specially-trained evaluator will make a formal written report, which should include findings and a recommendation for custody.
In other states, judges will refer the parents to a special brand of the court. For example, in Michigan, the judge refers all custody cases to the Friend of the Court. A specially trained social worker (or attorney) will contact the parents and schedule each for an interview, along with the children. During the interviews, the evaluator will investigate each parent’s ability and willingness to care for the children. After the interviews, the evaluator will prepare a written report with a recommendation for custody to the court.
The Friend of the Court will deliver a copy of the recommendation to the judge and each parent. If either parent objects to the recommendation, the next step is to ask for a hearing in front of the judge.
In other states, the court will require the parents to attend an initial court date to evaluate the case. If both parents come to the hearing and agree on a plan, the court will settle the case. If one parent attends and the other doesn’t, the court may issue a default judgment. If both parents appear and disagree, the court will schedule a custody trial.
During the custody trial, the judge will allow both parents to present their case on why they are best suited to care for the children and/or why their proposed parenting schedule is in the best interest of the child. Contested custody trials can be expensive and time-consuming because both parents will need to prepare and present evidence and witnesses to prove their case.
A judge’s priority in every custody trial is to determine what’s in the child's best interest. Although the specifics vary from state to state, every court will prioritize the child’s needs over the parents and evaluate specific factors to decide what's best.
Factors vary from state to state but often include:
There’s no one-size-fits-all test for custody. The judge’s main priority is to protect the child’s mental, physical, and emotional wellbeing. You may feel that it's necessary to present expert witnesses, like therapists or doctors. Some parents bring family or friends to testify to the court about their ability to take care of the children. The type and amount of evidence you’ll need will vary depending on your case, so it’s best to hire a lawyer ahead of the trial, who can help guide you thought this complicated court procedure.
Once the court concludes the hearing, the judge will issue a decision. In some cases, the judge will make a decision and issue a custody order on the spot. In others, you’ll need to wait for a written order to arrive in the mail. If you have temporary orders in place, you’ll need to abide by those until you receive the new one.
If you’re unhappy with the judge’s decision, you can 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, to start the process.
Alternatively, you can wait, and follow your state’s steps for modifying the custody order in the future. In many states, you can't file a motion to modify custody until a year after the last order was issued, and you will have to show that a substantial change in circumstances has occurred.
If following the custody plan puts your child in danger, however, then you can file an emergency request to change custody. The most common example of when an emergency request for a change in custody would be appropriate is if the other parent is physically abusing or neglecting the child.
If you’re going through a custody battle or have questions on the process to determine custody in your state, contact an experienced family law attorney near you.