How To Get Custody

There are many scenarios in which a parent or close relative will want to get custody of a child. Child custody hearings can be emotionally difficult. This is because the stakes are so high for everyone involved. 

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.

While parents can work out a custody arrangement on their own, the court must still approve it. If you're in a custody dispute, it's important to understand the process. You should also understand how the court makes custody decisions.

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.

Getting Started on Child Custody Proceeding

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.

Negotiating Child Custody Arrangements Informally

In the best-case scenario, parents will work together through informal negotiations to make decisions for their child. They can do this with or without the assistance of attorneys. They must come up with a custody arrangement and parenting plan. Once the parties agree, it should be in writing. This is usually called a "settlement agreement" or "custody agreement," depending on your state.

If the parents can agree and the court decides the terms are in the child's best interests, the court will approve the plan. There are no further hearings needed in these situations.

Using Alternative Dispute Resolution for Child Custody Decisions

Another way to avoid a courtroom showdown when confronted with a child custody dispute is to use an alternative dispute resolution (ADR) method, which includes:

  • Mediation
  • Collaborative family law
  • Arbitration

The advantage of using ADR over a traditional courtroom setting is that it tends to be much less adversarial. The goal is to compromise rather than simply determine "winners" and "losers." For ADR to truly work, the parents must be willing to work together to reach a solution that's best for the child.

Mediation and collaborative family law are the most commonly used forms of ADR for child custody cases. In mediation, the parties discuss the situation and propose solutions. They then devise a plan with the help of a neutral third-party mediator. Attorneys may also be present.

Collaborative family law is like mediation, with a few important differences. While the goal is to create a "win-win" situation for the parties, as in mediation, neither party may go to court. If court action is threatened, then the attorneys are automatically disqualified. The process is over. The parties must then hire new counsel or represent themselves if they wish to have custody decided by the court.

What Is a Parenting Agreement?

When the parties in a child custody dispute have hashed out their differences, compromised, and agreed to a set of rules for custody and visitation, they draft a parenting agreement. This often involves help and input from attorneys. The parenting agreement may also be called a "custody agreement" or "settlement agreement."

Once signed by the parties, the court can issue an order. Parenting agreements typically include the following:

Many states have statutes, or court rules, that require other particular provisions to be included in the agreement. This is another reason the assistance of an attorney is helpful. They can draft a strong parenting agreement.

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.

Most child custody hearings are relatively informal. The judge will ask each party several questions to determine whether they understand the terms of the parenting agreement. They will ask whether any disputes remain. If the parties have come up with a valid parenting agreement, there will be a court order.

If the parties have not reached an agreement or are unwilling to work together, the judge will decide who gets custody of a child. Custody proceedings are complex. The court considers multiple factors before reaching a decision.

How the Court Decides Child Custody

Ultimately, the court makes decisions about the custody of the child based on what the judge finds to be in the best interests of the child. This means the court will decide custody based on considerations of safety and the welfare of the child.

The court is the ultimate decision-making authority. They will consider several different factors in making this important decision.

Some factors for custody determinations include:

  • The needs of the child
  • The ability of the child's parents to provide care for the child
  • The physical health and mental health of each parent
  • The amount of time each parent has spent with the child
  • The quality of the relationship between the child and each parent
  • Any evidence of substance abuse, alcohol abuse, or domestic violence

The court may order a custody evaluation to assess the family's situation. During custody proceedings, parents may have questions about parental responsibility.

A custody evaluator might ask you about major decisions, such as those involving healthcare or your child's education. The court may issue temporary orders if custody proceedings are ongoing.

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 article.

Types of Custody Arrangements

Courts prefer to give joint custody to co-parents, where parents share parenting time. In some joint custody arrangements, parents share both joint legal custody and joint physical custody.

If a court finds that a parent is “unfit," they may award sole legal custody and/or sole physical custody to the other parent. Legal custody refers to a parent's ability to make major decisions about the child's life. This includes decisions about topics such as healthcare or education. Physical custody refers to where a child primarily lives.

The court might order the non-custodial parent to pay child support. The court may also award visitation rights to the other parent or another family member, such as a grandparent.

Remember, custody arrangements are not set in stone. They may be modified if there is a substantial change in circumstances. For example, if one parent moves away or becomes unable to care for the child, you may need to revisit the custody arrangement.

When To Hire Legal Advice for Parenting Agreements

It is important to have a parenting agreement to provide clear guidance for child custody. An experienced attorney can help you negotiate an agreement and represent you in any custody or visitation disputes.

Lawyers can advise you on child custody laws and your parental rights. They will explain the different types of custody to you. Attorneys will assist with custody issues until a judge signs a final custody order. Get help today and find an experienced family law attorney near you.

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.

Was this helpful?

Can I Solve This on My Own or Do I Need an Attorney?

  • Both parents can seek custody of their children — with or without an attorney
  • An attorney can help get the custody and visitation agreement you want
  • An attorney will advocate for your rights as a parent

A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.

Find a local attorney

Don't Forget About Estate Planning

Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

Start Planning