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Filing for Custody

If you're filing for custody of a child, keep in mind that family courts are primarily concerned with the child's well-being. Therefore, courts will want to know the primary caregiver. They will decide whether that person is best prepared to be the custodial parent.

Courts generally assume that visitation with the non-custodial parent is in the child's best interests. This is unless there's a history of abuse or domestic violence. The process of filing for child custody varies by state. Parents may write a parenting agreement with a custody plan and present it to the court for approval.

The following is a general explanation of what to expect when filing for custody.

Getting Started

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. This includes custody, visitation, and support issues. If you're filing for divorce without an attorney, the divorce petition must address any involvement of minor children.

Before you file the petition, make sure you can clearly explain why you should be awarded custody. Think about whether there was a change in circumstances. Bring up any concerns about the other parent's ability to care for the child.

Filing the Child Custody Petition

The first step in the custody process is filing the petition with the family court in the county where the child lives. You must do this 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. Court clerks can help direct you to the correct forms for your jurisdiction. If you still have questions about the filing process after you've talked to a clerk, it is wise to consult an attorney.

For example, in Florida, unmarried parents must file a Petition to Determine Paternity and for Related Relief. The filing party (typically the father) will share details about their relationship with the child, custody preferences, visitation, support, and other information. Then, the petitioner must prepare a parenting plan identifying both parents. They should specify their preferred type of custody. The parent may need to give proof of parentage. Finally, the petitioning parent files a Notice of Social Security Number.

The court will set a hearing date after filing all documents and serving the petition on the other party. This includes payment of court filing fees, waivers, and other court forms.

Keep in mind that the child's parents are not the only people who can seek custody of a child. For example, other non-parents like grandparents or stepparents may file for custody. These people may also petition the court for a visitation order to see the child.

The Child Custody Hearing

The hearing is where the family court judge will hear the arguments of each party and then award custody based on the best interests of the child. If both parties agree to a parenting plan and custody arrangements, the judge will approve the plan if it serves the child's needs. You may find it helpful to bring along certain documents to the hearing. This could include a visitation schedule and records showing your child thrives in your care.

If the custody dispute is particularly contentious, the judge may order a custody evaluation. This evaluation may include meetings with your child and visits to both parents' homes. Otherwise, the judge will make a determination at the hearing's conclusion.

The Child Custody Arrangement

The judge will enter a child custody order in the best interests of the child. The custody arrangement could be a joint custody arrangement, where co-parents share both legal custody and physical custody of the child. Legal custody refers to the parents' ability to make major decisions about the child's life. Physical custody refers to where a child lives. Usually, judges prefer ordering shared parenting time in the best interests of the child.

The judge may find that a parent is “unfit," such as in instances of child abuse or domestic violence. Then the court may award the other parent either sole legal custody or sole physical custody of the child. The court usually obligates the non-custodial parent to pay child support through a support order. Either party may ask the court to reconsider or modify this ruling if or when circumstances change.

For more information about child custody, visit FindLaw's Child Custody and Visitation FAQ webpage.

Filing for Custody? Consider Getting Professional Legal Help

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.

A family law attorney can assist you throughout your child custody case. They will help provide you with valuable legal advice and legal aid. Attorneys can help you complete and file court forms. They will help you understand the court rules. They can even represent you in family court during any custody proceedings until you receive a final court order.

Get started today and find an experienced child custody attorney near you. Most offer free consultations where you can ask for general information before committing to representation.

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Next Steps

Contact a qualified child custody attorney to make sure your rights are protected.

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