How To File For Child Custody in the United States

by LegalViewAdmin
Human paper with the lawyer

One of the most important issues that need to be sorted out after a couple separated or got a divorce is child custody. This matter must be properly decided according to the law and the welfare of the children.

Just like in any other case that is filed in court, a child custody case should also be filed by following the guidelines. If you are planning to file for child custody, the following are the guidelines on how you can properly file the case.

How Child Custody Works

Each state has different laws regarding child custody but all of the laws in each state prioritized the best interest of the child. These laws, no matter what state you live in will also require that both mother and father will be treated equally.

In the prior years, the child custody law does not have an automatic preference of who will get custody of the child. However, during the 1960s to 1970s, the majority of the states followed the “Tender Years Doctrine” where mothers get automatic custody of the child during their tender years.

There are two main options when it comes to child custody: joint custody or also referred to as shared custody and sole custody. Read further to better understand both options of child custody that are available for you.

Joint Custody or Shared Custody

The first option provided by the child custody law is joint custody which is also divided into parts. The first is called joint legal custody where both parents have an equal right to make major decisions in the life of the child such as healthcare, education, and religious matters.

Additionally, both parents will also have an authority regarding what age the child can drive or start dating or even on extracurricular activities that the child should or should not participate in. It is advised that both parents will work together when it comes to making these decisions for their child.

In instances where the mother and the father cannot agree regarding a particular decision, the court will come in between and choose a parent that will decide for the child as long as the decision will not put the child at any risk.

The other part is the joint physical custody which focuses more on the time the child should spend with each parent. The time a child should spend with each of the parents can be equal but it is not necessarily to be equal all the time. For an equal time-sharing setup to work, both parents should live near each other and both should be cooperative with one another.

Sole Custody

Another option for the parents who are separated is sole custody where the children spend the majority of their time with one parent. Additionally, the parent with sole custody is also responsible for making major decisions for the child.

The non-custodial parent on the other hand will be given visitation rights which means that they are entitled to spend some time with the child on particular occasions such as half of the major holidays, every other weekend, or some weeks during the summer.

Not unless the court sees no harm caused to the child, the non-custodial parent will easily grant the visitation rights to the child. The decision of the court will always be based on the welfare of the children and both parents will have to live by the court’s decision.

The Steps In Filing For A Child Custody

Child Custody Lawyer at Work

How to file for child custody will be based on the factors in your case. It is best to seek a lawyer’s advice before you file for the case so that you can have a clear idea and understanding of what you should and should not do. But in general, the usual processing steps for child custody is as follows:

1. File the complaint to the court. To make your custody case official, it could be formally filed to the court. You can file the case to the court where the child physically resides. You will require to fill up some forms which are why it is best to ask the court clerks if you already have all the forms necessary for the custody case. You will have to pay a specific filing fee to start the case. However, if you can not afford the fee, you will be given an option to file the case as an indigent. A form is available for this option that is titled “Petition to Sue as an Indigent” where you will request it at the courthouse. Upon completing the form, the filing fee will be waived and you do not need to pay for it for your case to be activated.

2. After filling out the form and paying the filing fee or the confirmation of the fee waiver, the next step is to confirm if the defendant received copies of the form you filed at the court and any important documents in regards to the case. A sheriff, any law enforcement officer, or any authorized person above 21 years of age will be the one responsible for serving the defendant with the document. You are not allowed to do it yourself. If the defendant is being represented by a lawyer, the documents will be served either the defendant or the lawyer.

3. When the custody case is ongoing, some states require both parents to participate in parenting seminars before the case will move forward. It is considered a prerequisite in child custody cases. There should nothing to be worried about as both parties will be attending the seminar separately. Each state has different ways of handling parenting seminars which is why it is best to consult with your local courthouse regarding the matter. Some states will require you to participate in mediation aside from the parenting seminar before you see a judge. It is a great opportunity to resolve the case without going to court. Once the case will be resolved during the mediation, there is no need to appear before a judge in the court.

4. Once mediation doesn’t resolve the issue of custody, the case will then be forwarded to the court. Once it does, this is the time where both parties will appear in front of a judge and the trial will commence. During the trial, both parties will be given a chance to present evidence to the court. The judge will consider all the evidence presented by both parties and make a decision based on this evidence. Once the judge decides, it is not irreversible unless there is a valid reason to do so. It is best to have a lawyer that will assist and represent you throughout the trial.

Factors That Affect The Decision of The Court

Wooden gavel on table in courtroom

The most significant factor in deciding for the custody of a child is who the primary caregiver of the child is. Whoever is much more responsible for taking care of the child and looking after their day-to-day needs then it is likely that the custody will be granted to that particular parent.

This is the most important factor considered especially if the child is too young. This factor may not be that significant when the child is older. In instances where both parents are actively raising the child, this factor also does not apply.

Another factor that the court will look into when deciding to whom the custody should be given is the bond of the child and a particular parent. Whoever has the closest bond with the child and can better provide the child’s need then the court will likely award custody to that particular parent.

The judge’s decision will be based on how the child reacts to a specific parent. If the child is more comfortable with you than the other parent then you will most likely win the custody case. It all comes down to the best interest of the child all the time.

To Sum It Up

It is best to file a custody case to have a formal agreement with the other parent regarding this matter. Custody battles between parents can sometimes affect the children and a custody case will be the only thing that can help stop the misunderstanding between both parties. As long as you have the best interest of the child, then you do not have to worry about the court’s decision.

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