By FindLaw Staff | Legally reviewed by Hal Armstrong, Esq | Last updated December 09, 2021
Whether you're filing for custody of a child born outside of marriage or as part of a divorce, family courts are primarily concerned about the child's well-being. Therefore, they'll want to know who the primary caregiver is and whether or not that individual is best prepared to be the custodial parent. Courts generally assume that visitation with the noncustodial parent is in the child's best interests unless there's a history of abuse or other concerns.
The process of filing for child custody varies by state, although parents also may write up a parenting agreement that includes a custody plan and present it to the court for approval. The following is a general explanation of what to expect, including links to state-specific resources, when filing for custody.
If you're getting a divorce and have representation, your attorney will cover matters pertaining to any minor children born (or adopted) to you and your spouse, including custody, visitation, and support. If you're filing for divorce without an attorney, the divorce petition will need to address whether minor children are involved.
Before you file the petition, make sure you can clearly explain why you should be awarded custody, especially if you haven't necessarily been the child's primary caregiver. Perhaps there was a change in circumstances, or you just discovered you had a child, or maybe you have concerns about the other parent's ability to care for the child.
The first step in the custody process is filing the petition with the family court in the area in which the child lives, using state-specific forms and procedures. It's not always necessary to retain legal counsel for this initial step, but some situations are more complex than others, and mistakes have the potential to have significant consequences. Court clerks can be helpful in directing you to the correct forms for your jurisdiction, but if you still have questions about the filing process after you've talked to a clerk, it would be wise to consult an attorney.
For example, in Florida, unmarried parents must file a Petition to Determine Paternity and for Related Relief. In it, the filing party (typically the father) shares details about their relationship to the child, preferences for custody, visitation, support, and other information. Then the petitioner will need to prepare a parenting plan identifying both parents, preference for the type of custody, and other details. Finally, the petitioning parent will need to file a Notice of Social Security Number, identifying family members involved in a family law matter.
After all documents are filed with the court (and the petition is served on the other party), including payment of court filing fees, and the other parent's response, the court will set a hearing date.
The hearing is where the family court judge will hear the parties' arguments and then award custody based on the child's best interests. If both parties agree to a parenting plan and custody arrangements, then the judge will approve the plan as long as it serves the child's needs. It may be helpful to bring along certain documents to the hearing, such as a visitation schedule and records showing that your child thrives in your care.
If the custody dispute is particularly contentious, then the judge may order a custody evaluation which may include meetings with your child and visits to both parents' homes. Otherwise, the judge will make a determination at the conclusion of the hearing. Either party may ask the court to reconsisder or modify this ruling if/when circumstances change, or they may revisit the custody arrangement at a later time.
If you're filing for custody, the steps you take will depend on the state where the child lives, whether you're also getting a divorce, and other factors. Since every situation is different, it's often in your best interests to seek out professional legal counsel. Get started today and find an experienced child custody attorney near you.
Contact a qualified child custody attorney to make sure your rights are protected.
Get tailored advice and ask a lawyer questions. Many attorneys offer free consultations.