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How To File for Custody

By Divorce.com staff
Updated Sep 20, 2022

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What Is Custody

Divorce is a very stressful and trying time for you and your partner. Your children can feel every bit of that stress. They’re the most important thing you need to protect during this challenging period, and establishing custody is an essential first step.

The sooner you have an official child custody agreement, the sooner your kids can get into a routine that will make their lives feel normal again. Here’s what you need to know about how to file for custody.

What Is Custody

What Is Custody?

Child custody is the legal right to make important decisions about a child’s life. When custody of a child, you assume responsibility for their wellbeing, education, and healthcare. You’re legally obligated to meet their needs and keep them safe.

What Is the Purpose of Filing for Custody?

You don’t technically need to file for custody if you’re getting divorced. If you remain on excellent terms with the opposing parent and can communicate effectively, you can continue to parent on your terms and divide responsibilities as you see fit.

Not everyone gets married as lovers and divorced as friends. Situations can be a lot more complicated. When you file for custody, you’re asking the court to create an enforceable list of duties and responsibilities for your child. Both parents need to abide by these rules.

Filing for custody is a good idea when one parent seems less interested in fulfilling their responsibilities and obligations to their children. The court can compel them to do so and create consequences if they do not. The simplest explanation: filing for custody helps avoid “deadbeat parent” situations.

How To File for Custody: Overview

Filing for custody can be a long and complicated process. It’s worth the time and effort. You want to make sure you’re making the right decisions for your children, even if those decisions are difficult.

  • Research Your Options
  • File a Petition for Custody
  • Attend a Mediation or Hearing

Research Your Options

There are different types of custody. The type of custody you choose should best reflect your family’s needs. You might need to have gentle conversations with your children about how they feel and review your finances before making any big decisions.

Things to Consider:

  • Best Interests of Children
  • Your/Your Spouse’s Financial Situations
  • State Laws Relevant to Your Case

Best Interests of Children

Because custody filing usually happens right before or after a divorce, emotions generally run high during this period. You might perceive the opposing parent as a negative person, but their relationship with you has nothing to do with their relationship with your shared children.

Before you act out of anger, consider your children. Do they actively enjoy the time they spend with the opposing parent? Does the other parent love them and take good care of them? Are they safe with the opposing parent? Most importantly: what do your children want?

The best outcome of any custody arrangement is one where children are happier, healthier, and safer because of the decisions that you’ve made.

Your/Your Spouse’s Financial Situations

It costs, on average, $233,610 to raise a child from birth until 18. Financial help rarely stops there, as children will likely need help with tuition and housing if they decide to go to college. That number might have been possible with two combined incomes under a single roof. Now, things are different.

You and your former spouse maintain separate residences. Your child will need a bedroom and food in both homes. Birthdays and holidays will be split. Things just got much more expensive for a single parent to manage.

You need to consider how things will work financially with your custody agreement. Suppose one parent cannot afford to fulfill their obligations or provide comfortable long-term accommodations for the child. In that case, choosing a custody arrangement is not wise to drive that parent into debt.

State Laws Relevant to Your Case

Child custody laws will vary from state to state. You’ll need to provide specific documents and meet certain requirements before you file for custody. While you’re still in the early stages of planning, learn the state laws relevant to your case. Your local family court will have resources you can use for research and planning.

File a Petition for Custody

Your local family court will have the paperwork you must complete to file for custody. You can often find the paperwork online and print it out. You don’t need to go to court until it's time to file the petition. When ready, you’ll file the papers with the family court and pay a filing fee. You may be required to sign the documents in front of a notary.

Necessary Documents

There may be other documents necessary to complete your request. If you can’t afford your filing fee, you can apply to have your fees waived. If you want help from the court while your custody case is still being decided, you can file forms for temporary requests to help you manage your children throughout your case.

At the same time you file for custody, you may also choose to file for things like divorce, legal separation, or child support. These are all separate forms that require a different process to complete.

Serving Papers to Other Party

If you’ve already discussed custody with the other parent and you’re both on board, you can serve papers to the other party on your own. Use a professional process server if they don’t know what to expect or are against the process. This can help you avoid uncomfortable confrontation, which is especially important when your children are around.

Attend a Mediation or a Court Hearing

There are two ways custody agreements can be finalized. The first way is through mediation, where both parents sit down and discuss the situation with a mediator. The second is through the courts, where the family court decides the best outcome for your custody case.

Mediation

Mediation is the gentlest way to approach child custody. You’ll work with an impartial mediator to develop an agreement you both feel is fair, even if it’s a little unconventional. The mediator will help you prepare the necessary documents to sign once you both agree on what you want to do.

Mediation is typically far less expensive and time-consuming than going through court. You’ll also have more freedom to create an agreement that works best for your entire family.

Court Hearing

Family court can hear your case and decide on the best outcome for the situation. You and the other parent will both state your desires to the court. You’ll both need lawyers to help you argue your case. In the end, the family court will decide the outcome of your custody agreement.

The Different Types of Custody

There are many different types of custody. It’s essential to choose the right kind of custody for your situation. Custody is a giant puzzle, and you need to put the pieces together in a way that rebuilds a healthy structure for your children.

There is legal custody (making decisions for the children) and physical custody (where the children will live), and each of them can be combined with sole custody (where one parent is responsible) or joint custody (where both parents are responsible).

  • Sole Custody
  • Joint Custody
  • Legal Custody
  • Physical Custody

Sole vs. Joint Custody

Sole custody is when one parent is ultimately responsible for making all decisions regarding the child. The other parent must be informed of these choices and access the child’s essential records, like school documents and medical records.

Joint custody is when both parents have an equal say in decisions regarding the child. Joint custody is an excellent solution for parents willing to communicate powerfully about their child’s best interests.

In some cases, joint custody can be awarded where one parent has the final say. In cases where parents disagree, one parent can be granted the ability to act as a tiebreaker for the situation, as their vote counts twice as much.

Legal Custody

The term “legal custody” refers to the parent’s right to make decisions. Joint legal custody means that both parents can equally decide for a child. Sole legal custody means that only one parent can legally make decisions for their child. Both parents must be equally informed of all decisions, even if they don’t legally have a voice in the decision-making process.

Physical Custody

Physical custody refers to where the children will live. Both parents can have joint legal custody, but one parent can have sole physical custody. Will your child live in one home after your divorce, or will they spend time visiting both parents? This is your physical custody arrangement.

Do You Need a Lawyer To File for Custody?

It’s always best to seek the advice of a lawyer when filing for custody, mainly if mediation is not an option. If your custody case will move through the family court, it’s necessary to have a lawyer on your side.

You might be able to iron out most of the details through mediation. Mediation is an excellent choice for divorced couples who can effectively communicate. It might be a good place to repair communication concerning your children. You don’t have to like your former spouse as a friend, but you do need to be able to put your children first.

Final Thoughts

Filing for custody is a big decision, and you have a lot to think about. Your children's well-being is essential in your life, and you need to make decisions that prioritize their ability to thrive.

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