However, even though child custody is typically determined during the course of a divorce proceeding, there are some situations in which you would need to file a separate petition in order to establish custody of your child. Typically, a petition for child custody would be filed in the absence of a divorce proceeding because you were never married to the other parent of the child in the first place. While specific procedures vary from state to state and even among courts within a state, the fundamental steps required to file a petition for child custody are the same across the United States.
Part 1 Drafting Your Petition
1. Find the most appropriate court. Because each court has its own set of rules for filing custody petitions, it’s critical to first determine which court you’ll be filing your petition in order to avoid confusion later on.
Typically, you must file your paperwork in the county where the child resides. Keep in mind that in some counties, you would go to the county court of general jurisdiction, whereas in others, you would go to a specific family court for issues such as divorce or child custody and visitation arrangements.
It is customary for you to file your petition for child custody in the court where the child’s paternity has already been established by an order, or if you have another order granting child support, before you can file your petition for child custody in another court.
2. Compile all of your documentation. Depending on the circumstances surrounding your petition for custody, you may be required to submit various types of supporting documentation to the court along with your petition.
In most cases, you’ll need proof that the child’s paternity has been established before you can proceed. An affidavit acknowledging paternity that was signed by both parents when the child was born, a declaration of paternity filed by the father, or a court order declaring the man to be the legal father of the child would all be examples of what would be required.
You will also require a copy of the child’s birth certificate, as well as any other court orders, such as a child support order, that pertain to the child.
If you have not yet had the paternity of your child established, you may be required to file a complaint in order to establish paternity of the child in question. In most cases, you can request that the judge decide custody of the child at the same time that the judge determines paternity.
3. Look for the most appropriate forms. For filing a petition for child custody, many courts provide fill-in-the-blank forms that you can use to complete.
The court’s website or the clerk’s office of the court where you intend to file your petition are both good places to start looking for the forms you will need. Legal aid offices and family law clinics may also have forms that have been approved by the court that you can use.
Should no website exist for the particular court you’re using, it is possible to find a self-help website for the entire state that contains forms that you can use instead. If you intend to use these forms, make sure you carefully read the instructions.
It’s important to remember that state forms may not be accepted in certain counties in some cases. Additionally, some counties may have additional forms that must be submitted with your petition in order to be considered. In most cases, any such differences or exceptions will be noted in the form’s instructions.
Children’s custody, child support, and parenting agreements are all available for download on legal information websites such as FindLaw, which provide links to the appropriate forms for each state.
4. Make a draught of your petition. If you’re working with a pre-made form, make sure to fill in all of the required fields completely and honestly.
It is your responsibility to format the petition if you could not find a pre-formatted version. You can use these petitions as guides if you ask the clerk for copies of petitions filed in the same court in other cases. Make sure you only copy the format of these sample petitions; you will need to modify the language contained within the petition to make it applicable to your own situation.
5. Complete any other forms that may be required. There are a variety of forms that must be submitted with a petition for child custody in different jurisdictions.
In some courts, the clerk will complete the summons, which notifies the other parent that he or she must appear in court; in others, you will be required to complete at least a portion of the summons and submit it along with the petition.
If the court has not yet ordered child support, you may be required to complete additional paperwork in order to calculate child support. When you file a petition for custody, you may be required to submit parental responsibilities worksheets as well as other paperwork.
The court will typically include all required forms in the packet, as well as instructions on how and when to complete and file each document. If you have downloaded a packet of forms from the court, the packet will typically include all required forms and instructions on how and when to complete and file each document.
If you intend to represent yourself in your child custody proceedings, you may be required to complete and file a notice of appearance in some jurisdictions. If you have retained an attorney, he or she will complete and file the appearance form on your behalf.
Part 2 Filing Your Petition
1. Sign the petition you’ve created. In some jurisdictions, you may be required to sign your petition in the presence of a notary public before it can be processed.
Verified complaints are petitions or complaints that require the notary’s seal and signature in order to be considered valid. Before you sign your court documents, the notary verifies your identity by reviewing the identification documents you provide to him or her.
Be sure to double-check the information you’ve included in your petition before signing it to ensure that everything is true and correct to the best of your knowledge before signing it. You should also double-check that you have included any other documents that may be required in order to file the petition.
Because affidavits are signed under oath, any affidavits you’ve included would typically need to be signed in front of a notary as well, which is why you’ve included them.
2. Proceed to the court clerk’s office with your paperwork. Your petition must be filed with the clerk of the court that will hear your case, and a file number must be assigned to it.
To complete the transaction, you will need the originals and two copies of the documents. It is recommended that you keep the first copy for your own records and the second for the other parent’s records. The originals will be retained by the clerk for use in the courtroom.
Your originals and copies will be stamped “filed” by the clerk, and a case number will be assigned. You will be required to pay a filing fee in order to have these documents filed. Due to the wide range of fees charged by different courts, you should contact the clerk’s office before filing to find out how much you’ll be required to pay.
In most cases, you can expect to pay between $100 and $300 to file your petition for child custody with the court. If you are unable to pay this fee, you may be able to apply to have the fees waived. The clerk will have an application that you must complete and submit to him or her, along with information about your income and assets. If you meet the requirements for low-income status, the court will waive your court costs.
3. Request that the other parent be served. You must notify the other parent that you have filed a petition with the court in order for the court to make a custody determination for your child.
The clerk will issue a summons to the other parent, requiring him or her to attend court. Typically, you must pay a sheriff’s deputy or a court officer to personally deliver the summons and petition to the other parent, though you may be able to send them via certified mail with a return receipt request if you are lucky.
Alternatively, if the other parent cannot be located or appears to be attempting to avoid service, the court may appoint a special process server to locate and serve the papers.
4. Make a copy of your proof of service. When your petition has been delivered to the other parent, you will typically be required to file a document demonstrating that he or she has been given notice of the proceedings.
A certified mail return receipt can be used as proof of service if you’ve sent the documents through certified mail with tracking. This form is typically required to be attached to a court form in which you describe how the other parent was served as well as when service was successfully completed.
Always keep in mind that, depending on the time of year and how busy the courts are, it could take several months to obtain a final custody determination.
Depending on your court’s requirements, the person who completed service may be required to sign an affidavit or other form, which must be submitted to the court.
Part 3 Preparing for Your Hearing
1. Wait for the other parent to respond before proceeding. A time period usually follows the service of the other parent’s petition before he or she has the opportunity to file an answer.
Most courts give the other parent between 20 and 30 days to file an answer to your petition after he or she has been served with it.
Typically, if that deadline has passed and the other parent has not responded, you will be entitled to a default judgement, which means that the judge will approve whatever custody arrangements or parenting plan you’ve described in your divorce petition.
In some jurisdictions, rather than requiring a written response from the other parent, a preliminary hearing is scheduled instead. The clerk will inform you of the next step you need to take. If you are summoned to an initial hearing, you must appear in person or your petition will be dismissed.
2. Consult with an attorney if necessary. The majority of uncontested custody cases can be handled without the assistance of an attorney, but if the other parent is contesting your petition, and especially if the other parent has retained an attorney, you may want to seek legal representation to protect your interests.
Shared custody is considered to be in the best interests of the child in the majority of states. If you are seeking sole custody of your child, you will have the burden of proving to the court that this arrangement is actually in the best interests of your child, which will be your responsibility. A lawyer may be the most effective means of achieving your objectives in such a situation, particularly if the other parent has a history of violence or abuse against the children.
If you’re concerned about your ability to pay for an attorney, you might want to check with your local legal aid office to see if you qualify for services there instead. In addition, many communities have family law clinics or law school clinics where you may be able to receive free or reduced-fee legal advice and representation.
It is possible that you will be able to find additional resources at your local domestic violence shelter if the other parent has a history of abuse or violence against you.
3. Attend any parenting classes that are required. Depending on the jurisdiction, parents who are seeking custody may be required to successfully complete parenting classes that cover topics such as legal custody and the best interests of the child.
You will be provided with a description of the requirements, as well as the dates and locations of any required parental orientation classes or programmes, when you file your petition with the clerk.
These classes typically instruct parents on how to deal with their children’s feelings about their divorced or separated parents, as well as how to avoid harming their children. During the course of a custody case, you will also learn about the procedures followed by your court and how judges evaluate custody under the “best interests of the child” standard.
4. Participate in the mediation process. Before a court hearing can be scheduled, many courts require parents involved in custody proceedings to attempt to reach an agreement on parenting time before a hearing can be scheduled.
If the other parent does not file an answer or does not appear at the initial hearing, the court may order mediation to discuss and agree on a parenting plan for the children.
Recall that it is generally in the best interests of both parents and your child to reach an agreement on a parenting plan rather than having one imposed by a judge. Obtaining an agreement through mediation gives you greater control over the outcome and the ability to design a custody plan that is beneficial to all parties involved.
In most cases, even if you and the other parent reach an agreement through mediation, you will still have to go to court because a judge must approve the parenting plan that you and the other parent have proposed.
5. Prepare your evidence and information in a logical manner. If you and the other parent are unable to reach an agreement on child custody arrangements, you will need to prepare for a court hearing on the matter in order to avoid losing your child.
Keep in mind that the judge will make the decision on child custody based on what is in the best interests of the child in question. Consequently, you should gather evidence that tends to demonstrate that the custody arrangement you’ve requested is in the best interests of your child before filing your petition.
As a rule, you must be able to demonstrate that the child lives in a stable environment with you and that you are financially capable of meeting the child’s basic requirements. You must also demonstrate that you have a positive relationship with your child and that you are able to provide your child with adequate emotional support and supervision during his or her development.
In addition to any documentary evidence, you may want to consider calling witnesses to testify on your behalf, such as a religious leader or your child’s teacher or coach.
It’s also important that you’re prepared to testify in your own defence. The judge will ask you a series of questions about your child, the other parent, and your request for custody of your child.
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