Get Child Custody

Child custody is one of the most heavily contested decisions in divorce proceedings. There are two types of child custody: physical custody entitles a parent to have his/her child live with him or her, and legal custody refers to the right and duty to determine aspects of your child’s upbringing (e.g., education, medical care, etc.). There is also a difference between sole and joint or shared custody. In many cases, parents are awarded joint legal custody even in situations where only one parent is awarded sole physical custody.[1] In situations where one parent has sole physical custody of a child, the court may award visitation rights to the other parent. Visitation allows the parent without physical custody to spend time with his/her child.[2] When awarding custody, the court considers many factors, such as the age and emotional state of the child, as well as the income, employment status and living situation of each parent. Start the process by finding an attorney to help you file for custody.

Steps

Beginning the Legal Process

  1. Consider mediation. Courts may order mediation once custody proceedings have begun, but you can also use a mediation service to settle your custody arrangements out of court. Mediations are conducted by trained professionals who can help you and the other parent come to an agreement regarding your child’s custody.[3]
    • Mediation is a neutral process. The mediator will help you and the other parent come to a decision that is in the child’s best interest.
    • Even if you are unable to come to an agreement in this process, mediation can help you come to an understanding of the main issues in the custody dispute. It can also help you prepare a plan for how to proceed in court, if necessary.
    • Many courts offer mediation counseling or referrals to trained mediators.[4]
  2. Begin looking for an attorney. Filing for custody is not something you want to try to handle by yourself. You'll want to hire someone familiar with your state's custody laws to help you file the right paperwork and include information that will help you get sole custody. If you fill out the forms incorrectly or leave out important information, you might not end up with a custody agreement that meets your and your child's needs.
    • Ask your friends, family and colleagues for a recommendation. It is especially helpful if these people have been in a similar situation. These referrals are often useful because you can have some idea of what to expect from the attorney before you meet with him/her.
    • Look for a reputable lawyer with several years of experience in family law, especially those who have helped parents work out custody agreements.
    • To find an attorney in your state, call your state bar association and ask for a referral, or look online at the state bar website under the “referral” section.
    • Before scheduling a consultation, check with your state bar association to confirm that the attorney you’re considering is eligible to practice in your state. You will also be able to see whether the attorney has a disciplinary record.[5][6]
  3. Schedule a consultation and ask questions before you hire the attorney. Although many lawyers charge a small fee for a consultation, it is worth it to find the right attorney who will best handle your custody case. Consider these questions you might ask a potential attorney to determine whether he or she is right for you:[7]
    • "How long have you practiced domestic relations and custody law?" You should be looking for three to five years of experience.
    • "Have you ever handled matters like mine before?" Here, you want the attorney’s answer to be yes; that he or she has handled at least 50 custody matters; and has handled custody matters in the past year.
    • "What are the possible outcomes?" The lawyer should have no problem explaining the possible outcomes of your case to you in an easily understandable way.
    • "Do you know the local domestic relations/family court judges?" You should hire a lawyer who knows the local judge(s) who will be handling your custody case.
    • "How will you keep me informed of the progress my case is making?" Here, you want to make sure the attorney will communicate with you regularly over email, by phone or in person.
    • "How much will you charge? And what will the fee cover?" You should discuss the attorney’s fee before you hire the lawyer. Make sure that the fee includes expenses and court costs (such as filing fees), and make sure the attorney is upfront and clear about what services he/she is charging you for.
    • "Can I have the names and contact information from prior clients to hear about their experience?" The attorney should have no problem giving you the names of past clients to talk to.
  4. Select an attorney that you feel comfortable working with. Do not choose someone that makes you feel uncomfortable in any way, regardless of the person's experience or ratings.
    • If you are unable to afford an attorney, consider finding a local legal aid program that can find a low-cost attorney to take your case or give you advice. For instance, in Alabama, the Alabama Volunteer Lawyers Association often takes domestic relations cases on a pro bono basis. It also runs a weekly clinic at the state’s domestic relations courthouses.[8]
    • A number of law schools operate “legal clinics” that offer low-cost legal services to the community. These clinics are usually run by law faculty and attorneys who are training law students. The type of services offered by these clinics varies. If you have a law school in your area, contact the school to see if it runs a legal clinic and/or offers family justice services. For example, the Law School at Northwestern operates a Children and Family Justice Center as part of its Bluhm Legal Clinic.[9]
  5. Visit your local court clerk. Each state handles child custody arrangement cases differently, but each requires that you file the appropriate petition. The type of petition you file is determined by your specific circumstances. Visit or call the court clerk to get the information you need regarding the appropriate petition. Tell the clerk that you want to schedule a child custody hearing and ask how to file a petition to start the procedure. These petitions might apply to your case:[10]
    • Petition to revise or update a petition that is already in place. If a court-ordered child custody agreement already exists, you will need to file a motion to alter that agreement.
    • Petition to establish custody. If there has never been a court proceeding to award custody to either parent, you will need to file this type of petition.
    • Petition to establish paternity and install custody. If you are a father whose paternity is in doubt, you must file a petition with the courts to mandate a paternity test before your custody requests will be considered.
  6. Fill out the paperwork and file your proposal for full custody (if applicable). In most cases, your attorney should help you fill out and file the paperwork for you. Just in case the attorney doesn't, keep these factors in mind:
    • Many courts provide a template for you to use to outline exactly how you want the legal and physical custody to be delegated. To find out whether your state provides a template, ask the court clerk or check on the local court's website.
    • If custodial rights were already settled, you'll need to explain why you want to make a change.
    • The court will ask for specifics about every aspect of your child's care. You must answer in appropriate detail. This will explain the extent to which you held the responsibilities of caregiver.
    • You should make two copies of the forms; one set for your records and the other set for the other parent involved. The court will keep the original.
    • In most cases, you will need to pay a fee when filing papers with a court. If you cannot afford to pay the court filing fees, contact the court to see if you are eligible for a fee waiver. Many states will provide waivers to low-income households. For example, in California, you are eligible for a fee waiver if:
      • You receive public benefits (e.g., SNAP, Medicaid); OR
      • Your household income falls beneath a minimum threshold (e.g., $2,092.71 per month for a family of three)[11]; OR
      • The court rules that you are eligible for a waiver due to your income.
  7. Serve the other party with a notice of your petition for a child custody arrangement. For the case to proceed, you need to make the other parent aware that you are requesting a change in custody. The process for serving someone varies from state to state, but you will not be able to serve the papers yourself. You may either make a request for service through the courthouse or hire a service company to do the job.[12]

Getting Custody as a Biological Parent

  1. Prepare to demonstrate that you have the necessary characteristics and financial stability required to raise the child. You must collect evidence that you can be a suitable parent to the child. When evaluating a parent's worthiness, a judge will consider such factors as:[13]
    • Employment history. A parent should be able to prove competence in holding a job and being fiscally fit to provide a child's material needs. However, even if the parent doesn't have adequate employment, most judges won't see that as a reason to deny him/her custody or at least visitation rights.
    • Housing. A fit parent is one that can provide a safe environment for the child to live in. You should plan to provide evidence that the other parent does not have a stable living situation.
    • Abuse. Any history of emotional, sexual, physical or drug abuse is taken into consideration by family courts. It is one of the biggest contributors to decisions awarding full custody to one parent. Collect police records and other evidence of abuse. If you are a domestic violence survivor, you can file for a temporary emergency custody of your child to establish legal protections for you and the child.[14]
    • Health. Parents must prove that they are both physically and emotionally capable of caring for a child.
  2. Understand other factors that the court may consider. State law determines what factors a court is to consider when making a custody decision. However, courts are obligated to act in the child’s best interests. In addition to the characteristics of the parents as mentioned in the previous step, courts often consider the needs and wishes of the child when making custody decisions.[15][2]
    • The child’s age. Nursing infants are very likely to stay with their mothers. Children above the age of 12 are likely to have more of a say in which parent is awarded custody.[15]
    • The child’s health. If a child has particular medical or mental health needs, the court may determine which parent is most able to provide for those needs.[16]
    • The child’s relationship with each parent. If the child has a preference for which parent he/she would like to live with, a judge may (but is not legally required to) consider this preference.[17]
    • The child’s ties to her/his school, home and community, and whether these ties would be disrupted by a custody decision. For example, if a child is enrolled in school, the parent who has remained in the family home in that school district may be awarded custody to keep things stable for the child. However, the court may also make the decision to award the parent with custody the right to live in the family home to preserve stability.[15][18]
    • Sexual orientation or gender identity. Some states do not allow courts to consider sexual orientation or gender identity in custody disputes. However, some states either permit or do not prohibit courts from using these factors in a custody decision.[19] In custody decisions involving same-sex parents, some judges may base their decisions on personal and social biases. Unfortunately, it is extremely difficult to reverse a judge’s custody decision even if it based on personal or social bias.[20][15][21][22]
    • Contrary to popular belief, a court will not “automatically” assign custody to the mother or father.[2]
    • DivorceNet maintains a database of what factors each state considers in child custody cases.[23]
  3. Offer evidence of abuse or danger. This is very unlikely to apply to most custody decisions. However, if you believe that the other parent is a serious danger to you and/or your child, you should collect and provide evidence that will support your argument, including:[24]
    • Police reports that indicate violent or aggressive behavior on the part of the other parent. If police reports are not available, you should do your best to document on your own the date, time, place and details of any abusive behavior.
    • Medical bills or records that are suggestive of abuse or neglect.
    • Photos that document incidents or injuries.
    • Statements from witnesses that describe a dangerous pattern of behavior by the other parent.
    • Psychiatric evaluations of the child.[25]
  4. Attend mediation. Once custody proceedings start, a judge will likely order mediation. Mediation is run by professional mediators whose job is to help parents collaborate on a plan to arrange custody. Many states offer mediation services that are operated in conjunction with the courts.[26]
    • Mediation may work faster than a court proceeding. Many judges consider it to be less stressful for the child.[27]
    • In some cases, mediation can be done with each parent separately.
    • Your willingness to cooperate with the other parent is likely to be considered by the judge when making the final custody decision.[28]
  5. Understand that a judge may order a custody evaluation. If you and the other parent can't come to an agreement, the court may order a custody evaluation. This evaluation is usually done by a mental health professional or social worker with special training in family issues.[29]
    • During the evaluation, the evaluator will interview the child, the parents and other relevant persons (teachers, doctors, etc.). The evaluator may observe the interactions between parent and child in a home setting.
    • In some cases, the court will appoint a Guardian ad Litem rather than a custody investigator. The Guardian ad Litem is, essentially, an attorney appointed to consider the child’s best interest in the custody decision.[30]
    • If the court orders a custody evaluation, the judge may assign an evaluator or provide you with several options. You may also be able to hire a private evaluator, but keep in mind that this will be significantly more expensive.[31]
  6. Go to the court hearing. You should have an attorney present for every step of this process. If you have not been able to come to a custody agreement through mediation, you'll need to go to your court hearing and make your case there.
    • Keep your cool during the process. You are trying to demonstrate that you are a rational, supportive individual who can provide a stable home for a child. Courtroom outbursts will be held against you.

Getting Custody if You Are Not a Biological Parent

  1. Understand when it is appropriate to seek custody. You might seek custody of a child who is not your biological child for several reasons. You should be aware that it will be very difficult to get custody of a child if the biological parents do not wish to surrender their rights to custody.
    • Adoption. Gaining legal custody of a child is not the same as adopting a child. Custody will terminate once the child reaches adulthood. Adoption is a permanent legal relationship that makes a child part of your family, regardless of age. Obtaining legal custody may be a first step toward adoption proceedings.[32]
    • Stepparent adoption. Stepparent adoption is usually less complex than other forms of adoption. However, in most cases the other birth parent must still give consent to the adoption.[33]
    • Incapacity or unfitness of the biological parents. In some cases, the court will award custody of a child to a person who is not the child’s biological parent if the child’s biological parents are incapacitated or unfit.
      • If the child’s biological parents are both incapacitated due to illegal activities or imprisonment, for example, the court may grant custody to another person who will be a better custodian for the child.[34]
    • Mutual agreement. In some cases, both biological parents may agree to waive their rights to custody. For example, if both parents believe that another person raising their child will provide the best living situation for the child, they may voluntarily surrender their rights.[35]
  2. Hire a family law attorney. Gaining custody of a child when you are not the child's biological parent is extremely complicated. It's best that you hire an experienced family law attorney. Use the steps in Method 1 of this article to help you select an attorney.
  3. Request the biological parent(s) give up their parental rights. This request is common if the custodial parent has remarried and the new spouse wishes to adopt the child. Before a stepparent can adopt a child, the non-custodial parent (the parent who does not have physical custody of the child) must surrender his or her parental rights.[33]
    • The strongest argument in this situation is the benefit of the child. For example, if the child is happy and stable living with the custodial parent and his/her new spouse, it may be easier to persuade the non-custodial parent to surrender his or her rights.[36]
    • If the other birth parent does not consent, you may be able to proceed anyway if you can prove that the other parent has abandoned the child. This is usually demonstrated by showing that the parent has not communicated with or supported the child.[33]
  4. Prove that the biological parents are unfit. This is the strongest argument that can be used in adoption cases when the biological parents want to retain or reclaim custody. To clarify, this means that a biological parent will not have to prove that he/she is a fit parent. Instead, they must be proven to be unfit. Here are a few additional points to keep in mind:[37]
    • Different courts define “unfit” in different ways, so make sure you check in the state where you will file for custody. For example, the Michigan Supreme Court found that “a parent is unfit when his or her conduct is inconsistent with the protected parental interest or the parent has neglected or abandoned the child.” Neither the existing law nor the ruling provided specific guidelines to determine fitness. Individual judges in Michigan are still considered to have a high degree of latitude in their rulings.[38]
    • In general, if the child has been abandoned, denied necessary care or has been abused, these can be considered as signs of parental unfitness.[39]
  5. Demonstrate that you have a parent-like relationship with the child. In many cases, people other than the parents of a biological child may perform parental-type duties. These include managing the child’s education, providing most or all of the child’s daily necessities (food, clothing, shelter, etc.), and managing the child’s health care needs. [37]
    • These facts on their own may not be enough to persuade a judge to grant you custody. However, if the biological parents are also not performing their parental duties, you may have a stronger case.
  6. Seek a "consent guardianship." Because it is so difficult to claim custody of a child against the consent of a biological parent, the better route may be to seek "consent guardianship." In this case, the parents consent to a third party (usually a relative) having custody of the child. A consent guardianship means that the parents agree that it is in the child’s best interests to live with the third party. [40]
    • However, even if a parent initially consents to a guardianship, the parent has the right to revoke that consent. If the parent revokes consent, the third party must apply for custody based on the unfitness of the biological parent (as discussed above).
    • Additionally, if the child’s parents passed away or indicated that they would like to give up parental rights to the child, it is possible that the third party can adopt the child.

Changing an Existing Custody Agreement

  1. Know how custody can be modified. There are two principal ways that custody orders can be modified: the court can modify custody decisions at any time; or the parents may jointly consent to modify custody decisions.[41]
    • If both parents do not agree to modify the custody arrangement, the parent seeking the modification must file papers with the court to request the change.[42]
    • It is unlikely that you will be able to get a custody order changed within the first two years.[43]
  2. Be prepared to demonstrate a change in circumstances. If you are requesting a change in an existing custody agreement, you will need to demonstrate to the court that your circumstances are different than when the custody decision was made.[42]
    • For example, if you were not awarded physical custody because you did not have stable employment and that has since changed, you may be able to petition to modify the custody agreement.
    • Another example might be if one parent is relocating to another state. If you have visitation rights but not custody, you may be able to petition the court to modify your custody arrangement to allow you to maintain a “meaningful relationship” with the child.[41]
    • The child’s wishes may also become a factor to consider. For example, the original custody decision may have been made when the child was very young. If the child is now at an age where s/he has a preference for which parent s/he will live with, the courts may consider modifying a custody decision.[44]
  3. Understand that you may need to go to mediation. Some courts require mediation before they will change a custody or visitation arrangement. You and the other parent may need to meet with a mediator to discuss the reasons for the potential modification before a court hearing is scheduled.[42]
  4. Fill out and submit the appropriate forms to the court. These forms will vary by state. Your court or family law attorney can tell you which forms you will need to use.
    • If you cannot afford an attorney, many courts offer family law facilitators who can review your paperwork. Contact your court to see if this service is available to you.
  5. Serve the other parent with papers. The other parent must be served with a copy of the papers you have filed with the court. You should not deliver these papers yourself.[42]
    • If you are delivering the papers by mail, you will usually need to do this at least two weeks in advance of the court hearing. The requirements may vary depending on your jurisdiction.
  6. Attend your mediation and court hearing. If you have been required to attend mediation, you will do that before you attend the court hearing. If you cannot come to an agreement in mediation, you will need to plead your case in court.[42]

Warning

  • The above consists of legal information, and should not be construed as legal advice.
  • Seek the assistance of a family lawyer in contested custody disputes.

Related Articles

Sources and Citations

  1. ↑ http://www.nolo.com/legal-encyclopedia/types-of-child-custody-29667.html
  2. ↑ 2.0 2.1 2.2 http://www.courts.ca.gov/17975.htm
  3. ↑ http://family-law.lawyers.com/child-custody/understanding-the-child-custody-mediation-process.html
  4. ↑ http://www.courts.ca.gov/1189.htm
  5. ↑ http://www.hg.org/northam-bar.html
  6. ↑ http://www.americanbar.org/groups/bar_services/resources/bar_association_directories.html
  7. ↑ http://hirealawyer.findlaw.com/choosing-the-right-lawyer/interviewing-a-lawyer.html
  8. ↑ http://www.probono.net/oppsguide/organization.135298-Alabama_State_Bar_Volunteer_Lawyers_Program
  9. ↑ http://www.law.northwestern.edu/legalclinic/cfjc/
  10. ↑ http://info.legalzoom.com/petition-court-custody-21363.html
  11. ↑ http://www.courts.ca.gov/documents/fw001.pdf
  12. ↑ http://www.selfrepresent.mo.gov/page.jsp?id=38351
  13. ↑ http://family-law.freeadvice.com/family-law/child_custody/custody-child-how.htm
  14. ↑ http://www.divorcenet.com/resources/child-custody/child-custody-and-domestic-violence.htm
  15. ↑ 15.0 15.1 15.2 15.3 http://www.divorcenet.com/resources/divorce/divorce-and-children/the-best-interests-child-factors-a-
  16. ↑ http://www.nolo.com/legal-encyclopedia/child-custody-faq-29054.html
  17. ↑ http://www.divorcenet.com/resources/a-childs-preference-virginia-custody-proceedings.html
  18. ↑ http://www.nolo.com/legal-encyclopedia/child-custody-faq-29054.html
  19. ↑ http://www.apa.org/pubs/highlights/spotlight/issue-11.aspx
  20. ↑ http://www.lectlaw.com/files/fam16.htm
  21. ↑ http://www.uclalawreview.org/?p=4182
  22. ↑ http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol30_2003/summer2003/hr_summer03_custody.html
  23. ↑ http://www.divorcenet.com/topics/the-best-interests-child
  24. ↑ http://www.divorcenet.com/resources/child-custody/child-custody-and-domestic-violence.htm
  25. ↑ http://thelawdictionary.org/article/how-to-get-emergency-custody-of-children/
  26. ↑ http://www.nccourts.org/Citizens/CPrograms/Child/
  27. ↑ http://family.findlaw.com/child-custody/child-custody-mediation-faq.html
  28. ↑ http://www.divorcenet.com/resources/divorce/divorce-and-children/the-best-interests-child-factors-a-
  29. ↑ http://www.divorcenet.com/resources/divorce/divorce-and-children/child-custody-evaluations-during-di
  30. ↑ http://www.ksfamilylaw.com/FAQS/guardial_ad_litem_gal/
  31. ↑ http://www.divorcenet.com/resources/divorce/divorce-and-children/child-custody-evaluations-during-di
  32. ↑ http://www.nrcpfc.org/fostering_connections/state_gap/TN_Comparison_Chart_Adoption_and_Guardianship.pdf
  33. ↑ 33.0 33.1 33.2 http://www.nolo.com/legal-encyclopedia/stepparent-adoptions-29643.html
  34. ↑ http://johnkgrubb.com/newsletters/obtaining-child-custody-if-you-are-not-a-biological-parent
  35. ↑ http://www.lawhelpmn.org/files/1765CC5E-1EC9-4FC4-65EC-957272D8A04E/attachments/1F9ED560-F5C1-484D-8909-C20090BC9C37/f-10-termination-of-parental-rights.pdf
  36. ↑ http://www.nolo.com/legal-encyclopedia/stepparent-adoptions-29643.html
  37. ↑ 37.0 37.1 https://www.rosen.com/childcustody/carticles/custody-issues-grandparents-and-non-parents/
  38. ↑ https://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/victor_middleditch.html
  39. ↑ http://www.211ct.org/InformationLibrary/Documents/Custodial%20Grandparents%20pt.asp
  40. ↑ http://www.sb-court.org/Divisions/Probate/Guardianship.aspx
  41. ↑ 41.0 41.1 http://www.legalmatch.com/law-library/article/relocation-and-child-custody.html
  42. ↑ 42.0 42.1 42.2 42.3 42.4 http://www.courts.ca.gov/1187.htm
  43. ↑ http://kyjustice.org/node/1630
  44. ↑ http://kyjustice.org/node/1630
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