Every child deserves to live with both parents, but sometimes that isn’t possible. Child custody battles are common among unmarried, separated, or divorced parents. In some circumstances, children suffer because their opinions don’t count if they’re underage.
If you’re filing for child custody, you want to win the case. But for that to happen, you have to present your side of the story accurately and prove that you’re the better parent. If you’re hoping that the judge will make you the custodial parent, there are several things you must do.
If you’re wondering what’s involved in a child custody case, this article is for you. Here is a complete guide on the child custody process and how things work.
Who Decides Child Custody?
The parents of the child are the people who drive the custody case. You need to work in collaboration to achieve a fair custody arrangement. The judge will consider the arrangement that you two have and adapt it into a court order.
If you both care about the child’s welfare, you need to work together and control what happens in the event of a divorce. You can decide custody and visitation through informal settlement negotiations or dispute resolution proceedings like collaborative law or mediation. In both circumstances, attorneys are involved, and everything happens out of court.
However, this doesn’t happen all the time, as many parents fail to get to an agreement. If this is the case, the custody battle goes to family court. At this point, you’ll have no option but to leave matters in the hands of the judge.
The judge investigates and considers certain factors when it comes to custody decisions. Once a judge makes a custody decision, both parents should abide even if one doesn’t like it.
Child Custody Decisions for Unmarried Parents
If the child’s parents are not married, the law in many states grants custody to the mother. The mother gets sole physical custody, and trouble can only erupt if the father goes to court to demand custody.
However, it’s hard for an unwed father to win such a custody battle if the mother is a good parent. But there are still steps that the father can take to apply for custody and visitation.
If the parents get involved in the custody battle, the process and the decisions are usually the same as those of divorcing couples. They can come up with an agreement for custody and visitation out of court. If that’s not possible, they’ll go to a family court and let the judge decide on custody and visitation rights.
Unlike child custody for divorcing parents, unmarried parents don’t have to go through other complicated procedures. There is no division of property or spousal support entangled in a child custody decision. This means the decision on child custody and visitation for unmarried parents will be more simplified.
If the battle ends up in court, the judge will identify the primary caregiver of the child. The judge bases their decision on what serve’s the child’s best interests and not the interests of the parents. In most circumstances, physical custody remains with the mother unless she’s incapable of caring for the child.
Child Custody for Non-Parents
In some circumstances, people who’re not the child’s biological parents can get child custody. These people can be relatives of the child, such as the grandparents, uncles, aunts, or close family friends. This agreement is also referred to as non-parental custody or third-party child custody.
This can also be referred to as guardianship instead of custody. The label depends on the state where you come from. Every state has procedures and laws that the person seeking non-parental custody must follow.
If you’re seeking non-parental child custody, you’ll start by filing a document called a non-parental custody petition. This document sets out your relationship with the child, the status of the biological parents, and why you want the child’s custody. If the parents are alive, the court will deliver a copy of the document to them.
The Process of Filing for Child Custody
Whether you’re divorcing, unmarried couple, or filing for non-parental child custody, the process is almost the same. There might be a slight difference depending on your specific case or your residence state. Here is your step-by-step guide to filing for a child custody case.
Get a Lawyer
Before you even think of making a child custody application, you must consult with your lawyer. Well, you can still get custody of your child without the help of a child custody attorney, but it’s always advisable to get one in case things get complicated.
Get an experienced family lawyer from Verhaeghe Law schedule a free consultation. Your lawyer will take you through your case and explain to you all the things to expect. Having a legal backup helps you understand the whole process and know how to behave yourself during the entire process.
Understand Child Custody Laws in Your State
Every state has its laws regarding child custody, and you should familiarize yourself with those specific to your state. Even if you have a lawyer, you still have to do your own research and get firsthand information. Take time to carry out extensive research and understand everything that goes into the case.
Some states have all the information on child custody available online. You can read all the requirements and understand all the necessary forms for filing custody. You can print them and save time you’d use going to go to a courthouse.
While doing your research, note down all the things you don’t understand and come up with a list of questions through the fine print. If you’re working with a lawyer, you can also ask them all the questions you’ve noted down. Consult with other experts in child custody cases or talk to a friend who has been in the same situation before.
File Child Custody Petition
With a lawyer backing you up and all the information you’ve gathered concerning child custody, you’re now ready to go ahead with your petition. Filing the petition in court is your first step to starting a child custody case. You should do this in the state where the child or the parent with the custody resides.
You also need to fill other forms, so you must verify with the court clerks that you have everything needed. Pay the filing fee or file a Petition to Sue as an Indigent, which requests the court to waive the fee. You should present all these papers to the courthouse.
Get the Papers Served to the Defendant
After filing your child custody case, you’ll have to ensure that the defendant receives the copies of the documents you’ve filed. The sheriff, law enforcement officers, or a private process server can take care of serving the defendant. You’re not allowed to serve the papers yourself.
The defendant can also get their attorney and can consent to service in what’s referred to as ‘acceptance of service.’ The papers can also be served to the attorney representing the defendant. If the defendant is nowhere to be found or lives in a different state, your lawyer may advise how to serve them.
Go for Mediation and Parenting Classes
Some states require you to attend child custody mediation and parenting classes once you start your child custody application. All of you need to attend these classes before proceeding with the case. You and the other parent will need to take the parenting classes separately.
Every county has its way of handling parenting classes, so you must find out how your country operates. You have to ensure you get good parenting education as that will have a lot of impact on your case. Talk to the court clerks, so they refer you to a good parenting school.
In addition to parenting classes, you’ll also need to attend mediation proceedings before appearing before a judge. Mediation offers you the chance to come to an agreement regarding child custody and visitation. An expert will sit with you and help you work together towards an agreement.
If you negotiate and reach a common agreement, the mediation and agreement will be recorded and presented to the judge for approval. The court can still waive the mediation if one party agreed under pressure or there’s evidence of domestic violence.
Prepare for the Court Date and Attend Hearing
If the negotiation process is not successful, you’ll have to prepare to go to court. The first series of your child custody hearing lasts 15 to 20 minutes. You should prepare yourself in advance and think of what you’re going to say because you’ll only have a few minutes to present your case.
You can prepare by writing down a list of all the issues you want to address and narrow them down to your strongest points. Practice with a friend and trim down your talking points to the most relevant.
Appear Before the Judge
Make sure you arrive early to your child custody hearing and dress professionally. Both you and the defendant will have the chance to present your evidence. This will include testimony, police reports, medical records on domestic violence, and witnesses.
Compose yourself and avoid getting rattled by what the defendant says, even if it’s not true. Present your case and avoid talking too much if you’re not asked to speak. Don’t interrupt the judge but answer all questions with complete honesty.
The judge will take into account your statement plus that of the other parent when deciding on child custody. The decision will not come immediately, and this is also where you need to practice high levels of patience. It will take several days before the judge finally decides who should gain physical custody of the child.
Respect the Judge’s Decision
No matter how well you present your case, things may not fall in your favor. It’s essential to take the decision of the judge calmly and accept what the court says at the moment. Abide by the recommendations from the judge, even if it involves getting a job or taking parenting classes.
Do everything to meet the court’s demands and don’t break the law by doing anything crazy. Some parents can get violent or even attempt to kidnap the child, complicating things even further. How you behave after the court decision determines what you’ll get when your case is revisited in the future.
How Can You Modify Custody Arrangements
The judges decide on child custody with the consideration of the child’s stability. It might be difficult for parents to modify court orders, but not impossible. Children grow with time, and the circumstances of the parents also change.
Sometimes the change of circumstances may give room for modification of current custody orders. Every state has its own rules for changing child custody and visitation rights. Many require the parent to prove that they’ve substantial change in circumstances since the last order.
You must also prove that the current order no longer serves the child’s interests. The court will review the new application and apply the best interest standards in favor of the child. If you’re lucky, you might win the custody battle this time.
Get Help on Handling Child Custody Case
Child custody is a lengthy process, and you need legal and professional help to navigate. If negotiations out of court fail to bear fruits and you to go to family court, be ready to fight for your rights. You’ll need the services of a child custody lawyer both outside and in court to help you take an aggressive approach when fighting for your rights.
Do you have any questions on child custody or other family legal matters? We’re here to help you with educative content so you prepare yourself for any legal procedures. Read other legal content on this site and stay informed.