File for Full Custody

In most states, custody determinations are split between “legal custody” (decision-making authority) and “physical custody” (residence). Having both decision-making and residential rights is often referred to as "full custody." If you are a parent attempting to obtain full custody of your child, you will have to open a family law case, petition the court for full custody, and come to an agreement with the other parent or go to court. Follow the directions in this article to file for full custody of your child.

Steps

Understanding When You Can File for Full Custody

  1. Start a case when you are married. If you are currently married to the other parent, you can petition for custody once you start one of the following cases:
    • Divorces, annulments, or legal separations, which are cases you will file if you want to end your marriage with the other parent;
    • Domestic violence restraining orders, which you will file if you have been the victim of domestic violence;
    • Petitions for custody and support of minor children, which you will file if you and the other parent do not want to get a divorce, but you want to set up a custody arrangement for other reasons; or
    • Child support agency cases, which occur when you are the subject of a local child support enforcement case.[1]
  2. Begin the process when you are not married. If you are not married to the other parent, you can petition for custody once you start one of the following cases:
    • Parentage cases, which are filed when parents are not married but have children together;
    • Domestic violence restraining orders;
    • Petitions for custody and support of minor children, which can also be filed when you and the other parent were never married at all; and
    • Child support agency cases.[1]
  3. Petition the court for custody once you have started your case. After you have opened an appropriate family law case, you will need to file a petition for custody of your child. The remainder of this article will take you through that process.

Filing for Full Custody

  1. Consider hiring an attorney. If you can afford a family law attorney, you should consider hiring one to help you navigate the custody process. See this article for directions on how to find a good family law attorney. Even if you cannot afford a full-service attorney, many attorneys provide limited services at a reasonable cost. This means you may be able to hire an attorney to prepare your documents, give you limited legal advice, or potentially even teach you about this area of the law, without having to pay the attorney to take on the entire custody process.
  2. Locate the appropriate court. You will file your petition for custody in the same court you opened your family law case in. Generally, you will open your family law case in the country where your child lives.[2] This is true even if you live in a different county.
  3. Complete the necessary forms. In order to petition the court for full custody of your child, you will have to fill out a request for an order.[3] This form will require you to divulge information including your request for custody and the facts supporting your request.[4] These facts should indicate why you deserve custody of the child and how your custody request will be in the best interest of the child.
    • Because you are petitioning the court for full custody, you need to make sure you request both legal and physical custody.[4] In California, this is as easy as writing your name under the headings on the form for "legal custody" and "physical custody."[4]
  4. Review your forms. Once you have filled out the required forms to request a custody hearing, you will want to review them carefully. These forms are going to be the basis of your custody argument, so you want to make sure they have been filled out accurately and completely. If you will not have the help of an attorney, consider using some of the free legal resources available to you. For example, in California, you can contact a family law facilitator or a self-help center for assistance with these forms.[3] If you are in California, use this link and this link for more information about those resources.
  5. File the forms. Once your forms have been reviewed and you have determined they are ready to file, you will want to go to your local courthouse to file them. At the courthouse, file your forms with the clerk of courts.[3] The clerk of courts will take possession of your forms and will require you to pay a filing fee.[3] Fees will differ from state to state, and even county to county. If you cannot afford the fee, you can always ask for a fee waiver.[3] In order to receive a fee waiver, you will need to show some sort of financial hardship.[5] For example, you could show that you are receiving public benefits or that you do not have enough income to provide for basic necessities and pay the filing fee.[5]
  6. Serve the other party. When you serve the other party, you will hire someone (the sheriff or another competent adult) to give a copy of your filed documents to the other party to look over and respond to. To serve the other party, the person you hire must provide the required documents to them, either in person or through the mail.[6] If you are serving someone through the mail, it must be sent by certified mail. In Pennsylvania, this process must be completed within 30 days of filing your documents with the court.[6] In some states (e.g., Michigan), your answer must also be served on the other party at least five days before the hearing if you provided service through the mail, and at least three days before the hearing if you have the other party served personally.[7] For more information about serving another party, look here.
    • In addition to serving the other party with the documents you filed with the court, you will also serve the other party with a blank response form and a blank Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act.[8] These documents will be used by the other party in order to respond to your filed lawsuit.
  7. Wait for an answer. Once you have successfully served the other party with your petition for full custody, the other party will have an opportunity to respond to your petition. When the other parent answers your petition, they will have the option of agreeing with your requests or denying some or all of your requests. Also, the other parent may fail to file an answer at all.
    • If the other parent declines to file an answer, you could file for a default judgment.
    • A default judgment cannot resolve all issues, however. For example, the court can modify visitation if the child is in your state but the other parent lives out of state. But the court probably cannot modify an order for child support from the out-of-state parent.
  8. Take part in mediation. If the other party filed an answer and you did not get a default judgment, some courts will require you and the other party to take part in mediation before you can go to court.[1] If your court requires mediation, you and the other party should make a good faith effort to agree on the terms of custody there, which will allow you to avoid the trial process. For more information about mediation, look here.
  9. Submit an agreement. If you and the other party took part in mediation, and you came to an agreement allowing you to have full custody of your child or children, get the agreement signed by the court and that will act as your valid custody order.
    • In California, in order to validate a custody agreement, you must first fill out a Stipulation and Order for Custody. Once you fill out this form, you will obtain the judge's signature on your stipulation and you will file it with the clerk of courts.[1]

Preparing for Trial

  1. Understand what you need to prove in court. If you were unable to reach an agreement during mediation, or if your court does not require or offer mediation services, you will have to go to court and tell a judge why you deserve full custody of your child. Since you are asking for full custody, the court will look to a variety of factors to determine what is in the child’s “best interests.”[9] These factors will differ by state. They will be listed in either a statute passed by the legislature or in a court opinion issued by your state supreme court.
    • Courts will look at different factors, depending on the state. Michigan, for example, considers: the love and affection existing between the parties and the child; the ability and willingness of the parties to provide food, shelter, clothing, and medical care; moral fitness of the parent; stability of the custodial environment; and mental and physical health of the parties, among other factors.[10]
    • Among a variety of factors, Kentucky considers the wishes of the child; the child’s adjustment to home, school, and community; the mental and physical health of all individuals involved; as well as the interaction and interrelationship of the child to each parent and to siblings.[11]
    • To find the specific factors for your state, search online for “best interests of the child” and then your state.
    • Understanding what you must prove at court will clarify the kinds of evidence you should seek during the discovery process. For example, you will need to prove your physical health, your willingness to provide food and medical care, as well as a stable home environment. You will also need to fend off attacks to these same characteristics.
  2. Engage in discovery. The first pretrial stage you will encounter will be discovery.[12] During discovery, you will have the opportunity to collect facts, get witness statements, find out what the other party is going to say at trial, and get an idea of how good your case is.[12]
    • If you take part in informal discovery, you may conduct interviews with witnesses, collect documents, and take photographs.[12] These are all considered informal discovery processes because they are things you can do on your own while working with cooperative people.[12]
    • If you need to use formal discovery, you will utilize various tools to require uncooperative parties to give you information you need.[12] These tools include: interrogatories, which are written questions the other party must answer; depositions, which are in-person interviews with an opposing party or witness; requests for documents, which asks the other party to produce documents you want to see; and requests for admissions, which will involve you asking another party whether certain statements are true.[12]
  3. Meet for a custody evaluation. Oftentimes, during the preliminary stages of a custody lawsuit, the court will require you and the other parent to go through a custody evaluation, which will then be submitted to the court. A custody evaluation will usually be a report, written by a professional, opining on the parenting skills and abilities of you and the other party.
    • You will likely have to take part in multiple interviews, some being conducted with the other party and others being conducted alone.[10] The evaluator will ask questions to try and determine if giving you full custody will be in the best interests of the child. For example, you may be asked, “How do you show love for the child?”[10]
    • Also, you may be asked to provide the evaluator with community and school records. The evaluator may want school records, such as disciplinary violations, or a record of the community activities the child participates in. You will need to sign a release for the evaluator to access them.[10]
    • The evaluator may also want a “home record.” This consists of information about the child’s behavior (outgoing or withdrawn), as well discipline problems and relationships with siblings.[13]
  4. Schedule your trial. Towards the end of your preparations for trial, you will have to schedule a time to actually conduct the trial. To do this, contact the clerk of courts and request a trial date. You may have to go in front of a judge in order to convince them that the trial date that is set will work for both parties and that everyone will be prepared.

Going to Court

  1. Arrive on time. When your trial date arrives, get to the courthouse early. You will be required to go through a security checkpoint, which will look and feel a lot like airport security. Once you get through security, go to your courtroom and wait until your case is called.
  2. Dress appropriately. An important part of being successful in court involves dressing professionally. A courtroom is considered a professional and serious venue, so you need to dress that way. Always wear a suit if you have one. You should always avoid wearing shorts, sandals, and hats.
  3. Deliver an opening statement. You or your lawyer will need to give the judge a roadmap of what the evidence will show. The opening statement should be brief, but should summarize what evidence will support your claim to full custody.
    • Do not engage in argument. Emotions can run high in a custody hearing, but there is nothing to argue about during the opening statement because no evidence has been admitted into court yet.
  4. Call witnesses. As the petitioner (the person seeking full custody), you will present witnesses first. The respondent (the other parent) will then have an opportunity to cross-examine each witness.
    • Do not ask leading questions.[14] A leading question states a fact and then asks the witness to agree. For example, “You never spank your child, do you?” is a leading question. Instead, the lawyer should ask a series of questions such as “How often does your son misbehave?” “Do you punish him?” “How do you punish him?” Then the attorney can ask, “Have you ever spanked your son?”
    • Ask witnesses to identify any documents you want introduced into evidence. You must first elicit testimony that a document is what you claim it is before it can be admitted into evidence.
  5. Cross-examine the witnesses for the other side. The purpose of cross-examination is to either discredit the witness or to minimize the testimony by showing that the witness is biased or lacking in sufficient knowledge to testify about the matter.
    • You can impeach a witness with a prior inconsistent statement. If a witness ever praised you as a parent, then that statement can be introduced if the witness now claims on the stand that you are a bad parent.
    • If someone testifies that you and your child fight, then you can minimize the damage by highlighting how infrequently the witness sees you with your child.
    • Always try to remain calm. If you feel anger overwhelming you, close your eyes for five seconds and breathe deeply.
  6. Deliver a closing argument. You or your lawyer will summarize your case, explicitly linking evidence to the best interest of the child factors provided in you state’s statute.
    • Counter bad facts as best as you can. If you don’t have a clean criminal record, then concede that fact before highlighting the evidence that shows you have lived responsibly for the past several years.
  7. Wait for the court's decision. Once your trial is over, the judge will make a decision regarding your case. If you prevail, you will have obtained full custody of your child. If you were unsuccessful at trial, you can choose to appeal the judge's decision if you think they made a mistake.

Related Articles

Sources and Citations

  1. ↑ 1.0 1.1 1.2 1.3 http://www.courts.ca.gov/1185.htm
  2. ↑ http://info.legalzoom.com/petition-court-custody-21363.html
  3. ↑ 3.0 3.1 3.2 3.3 3.4 http://www.courts.ca.gov/1185.htm#acc11690
  4. ↑ 4.0 4.1 4.2 http://www.courts.ca.gov/documents/fl300.pdf
  5. ↑ 5.0 5.1 http://www.courts.ca.gov/selfhelp-feewaiver.htm
  6. ↑ 6.0 6.1 http://www.pacode.com/secure/data/231/chapter1930/s1930.4.html
  7. ↑ http://michiganlegalhelp.org/self-help-tools/family/being-defendant-custody-case
  8. ↑ http://www.courts.ca.gov/1185.htm#acc11688
  9. ↑ http://family-law.lawyers.com/child-custody/the-childs-best-interests-in-custody-arrangements.html
  10. ↑ 10.0 10.1 10.2 10.3 http://courts.mi.gov/administration/scao/resources/documents/publications/manuals/focb/custodyguideline.pdf
  11. ↑ http://www.lrc.ky.gov/Statutes/statute.aspx?id=1464
  12. ↑ 12.0 12.1 12.2 12.3 12.4 12.5 http://www.courts.ca.gov/1093.htm
  13. ↑ http://courts.mi.gov/administration/scao/resources/documents/publications/manuals/focb/custodyguideline.pdf
  14. ↑ http://research.lawyers.com/direct-and-cross-examination-of-witnesses.html

 

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