In most states, custody decisions are divided into "legal custody" (decision-making authority) and "physical custody" (residence). Having residence and decision-making rights is often referred to as "full custody." If you are a parent trying to get full custody of your child, you will need to open a family law case, ask the court for full custody, and settle with the other parent or go to trial. Follow the instructions in this article to request full custody of your child.
Steps
Part 1 of 4: Understand In Which Cases You Can Request Full Custody
Step 1. Open a case when you are married
If you are currently married to the other parent, you can request custody once one of the following occurs:
- Divorce, marriage annulment or legal separation, which are what you will have to present if you want to end your marriage.
- Restraining orders for domestic violence, which you will present if you have been a victim of this situation.
- Lawsuits for custody and support of minor children, which you will have to file if you and the other parent do not want to get divorced, but want to reach a custody agreement for other reasons.
- Agency-filed child support cases, which occur when you are part of a local case in which child support enforcement is demanded.
Step 2. Begin the process when you are not married
If you are not married to the other parent, you can apply for custody once one of the following occurs:
- Paternity cases, which occur when the parents are not married but have children together.
- Domestic violence restraining orders.
- Lawsuits for custody and support of minor children, which can also be filed, even if you and the other parent have never been married.
- Child support cases filed with agencies.
Step 3. Ask the court for custody once you have opened your case
After you have opened a family law case the right way, you will have to file a lawsuit for the custody of your child. The rest of this article will guide you through that process.
Part 2 of 4: Request Full Custody
Step 1. Consider hiring an attorney
If you can afford a family law attorney, you should consider hiring one to help you with the process. Review this article for instructions on how to find a good family law attorney. Even if you cannot afford an attorney in full, many offer limited services at a reasonable cost. This means that you can hire a lawyer to prepare your documents, give you limited legal advice, or even teach you a little about this branch of law, without having to pay him to take over the entire lawsuit process.
Step 2. Locate the appropriate court
You will file your custody claim in the same court where you opened your family law case. Generally, you will have to open your family law case in the county where your child lives. You will have to do this even if you live in a different county.
Step 3. Complete the necessary forms
In order to petition the court for full custody of your child, you will need to fill out an application for an order. You will need to disclose information that will include your request for custody and the facts that support that request. These facts should indicate why you deserve custody of the child and how your request for custody will be in the best interest of your child.
Because you are going to ask the court for full custody, you should make sure to ask for both legal custody and physical custody. In California, this can be done by simply writing your name under the headings "legal custody" and "physical custody" on the form
Step 4. Review your forms
Once you have filled out the necessary forms to request a custody hearing, you will need to review them very carefully. These forms will be the basis of your custody plea, so you must fill them out with accurate and complete information. If you will not have the advice of an attorney, consider using some of the free legal resources available to you. For example, in California, you can contact a family law facilitator or self-help center for assistance with completing these forms. If you live in California, use this link and this one to learn more about those resources.
Step 5. Submit the forms
Once you have reviewed your forms and decided they are ready to file, you will need to go to your local court to do so. In court, you must file your forms with the Clerk of Court. The Clerk of Court will receive your forms and ask you to pay a filing fee. Rates will vary from state to state and even county to county. If you can't pay the fee, you can ask for a waiver. To get an exemption, you will have to show that you have some kind of financial hardship. For example, you can show that you receive public benefits or that you do not receive enough income to cover your basic needs and pay the filing fee.
Step 6. Have the documents served on the other party
To serve the other party, you will need to hire someone (the bailiff or other competent adult) to serve a copy of the documents presented to the other party so that they can review them and provide a response. To do this, the person you hire must deliver the necessary documents, either in person or by mail. If you decide to have the documents delivered by mail, you must use certified mail. In Pennsylvania, this process must be completed within 30 days of filing the documents with the court. In some states (for example, Michigan), your response must also be delivered to the other party at least five days before the hearing if you have decided to be served through the mail and at least three days before. of the audience if you are going to deliver personally. For more information about document delivery, check out this article.
In addition to serving the other party with the documents you filed with the court, you must also serve a blank response form and a blank statement under the Uniform Child Custody Jurisdiction and Compliance Act. The other party will use these documents to respond to your claim
Step 7. Wait for an answer
Once you have served the other party with the full custody claim, they will have the option to respond. When he does, he may agree to your demands or deny some (or all) of you. Also, it might just not send a reply.
- If the other parent refuses to file an answer, you can request a default judgment.
- However, a default judgment will not solve all problems. For example, the court might change visitation if the child lives in your state and the other parent lives out of state. However, a child support order for the out-of-state parent may not be able to be modified.
Step 8. Participate in a settlement
If the other party filed an answer and did not receive a default judgment, some courts will require that both parties participate in a settlement before they go to trial. If the court requires conciliation, you and the other party must make a good faith effort to agree on the terms of custody, which will avoid legal process. For more information about the settlement, check out this link.
Step 9. Submit an agreement
If you and the other party participated in the settlement and reached an agreement that allows you to have full custody of your child or children, have the court sign the agreement, which will serve as a valid custody order.
In California, to validate a custody agreement, you must first fill out a Custody Order and Stipulation Form. Once you have completed it, the judge will sign it and you will have to file it with the Clerk of the Court
Part 3 of 4: Prepare for Trial
Step 1. Understand what you must prove in court
If you were unable to reach an agreement during conciliation or if the court does not require or offer conciliation services, you will have to go to court and tell a judge why you deserve full custody of your child. Because you are requesting full custody, the court will evaluate a variety of factors to determine what is "best" for the child. These factors may vary by state. You can find a list of them in a statute approved by law or in a judicial opinion issued by the Supreme Court of your State.
- Courts will evaluate different factors, depending on the state. In Michigan, for example, it takes into account: the love and affection that exists between the parties and the child; the ability and willingness of the parties to provide you with food, shelter, clothing and medical care; the moral suitability of the parents; the stability of the custodial environment; and the mental and physical health of the parties, among others.
- Among various factors, Kentucky considers the wishes of the child; the adaptation of the child to the home, school and community; the mental and physical health of all those involved; and the child's interaction and interrelation with parents and siblings.
- To find out the specific factors your state considers, you can search online for the phrase "best interests of the child" and then include the name of your state.
- Understanding what to prove in court will help clarify the types of evidence to look for during the discovery process. For example, you will have to prove your physical health, your willingness to provide food and medical care to the child, as well as a stable family environment. In addition, you will have to defend yourself from attacks on these same characteristics.
Step 2. Participate in the discovery process
The first pre-trial phase you will encounter will be discovery. During discovery, you will have the opportunity to gather facts, obtain witness statements, find out what the other party will testify at trial, and get a sense of how good your case is.
- If you participate in an informal discovery process, you can conduct witness interviews, gather documents, and take photos. They are considered informal discovery processes because they are things you can do on your own while working collaboratively with other people.
- If you need to make a formal discovery, you will use various tools to require uncooperative parties to provide you with the information you need. These tools include: interrogations, which are written questions that the other party must answer; depositions, which are interviews in person with the opposing party or their witnesses; document requests, which ask the other party to prepare documents that you want to review; and verification requests, which consist of asking a third party to verify certain claims.
Step 3. Meet with the other party for a custody evaluation
Often times, during the preliminary stages of a custody lawsuit, the court will require both you and the other parent to undergo a custody evaluation, which will then go to court. A custody evaluation usually consists of a report, written by a professional, in which you comment on the abilities and capacities, both you and the other party, to act as parents.
- You will likely have to participate in several interviews, some for you and the other party and some just for you. The evaluator will ask questions to try to determine whether giving you full custody will be in the best interest of the child. For example, he might ask you, "How do you show your love to the child?"
- Additionally, you may be asked to provide the evaluator with school and community records. The evaluator may ask you for school records, such as disciplinary infractions, or a record of community activities in which the child participates. You will have to sign an authorization for the evaluator to have access to these documents.
- The evaluator may also ask you for a "household record." It contains information about the child's behavior (extroverted or reserved), as well as discipline problems and relationships with his siblings.
Step 4. Schedule the trial
When you are about to finish preparing for the trial, you will need to schedule a time for the trial to take place. To do this, you must contact the Clerk of the Court and request a date. You may need to speak to a judge to convince him that the trial date is right for both parties and that everyone will be prepared.
Part 4 of 4: Go to Trial
Step 1. Be on time
When the trial date comes, get to court early. You will have to go through a security check, very similar to airport security. Once you have passed that control, go to the courtroom and wait until your case is called.
Step 2. Wear an appropriate outfit
To be successful in court, it is important to dress professionally. A courtroom is considered a serious and professional setting, so dress appropriately. You must wear a suit, if you have one. You should always avoid wearing shorts, sandals, and hats.
Step 3. Make an opening statement
The lawyer (or yourself) will have to give the judge a kind of summary of what the evidence will show. Your opening statement should be brief, but it should summarize what evidence will support your full custody application.
Don't include emotions in that claim. Emotions can run high in a custody hearing, but you shouldn't argue about it during your opening statement as the evidence will not have been admitted yet
Step 4. Call your witnesses
As the plaintiff (the person seeking full custody), you will need to present your witnesses first. The defendant (the other parent) will then have the opportunity to question each witness.
- Don't ask leading questions. A directed question states a fact and then asks the witness if he agrees. For example: "You have never hit your son, have you?" Instead, the attorney should ask a series of questions such as, "How often does your child misbehave?" "Do you punish him?" "How do you punish him?" Then they might also ask you, "Have you ever spanked your child?"
- Ask the witnesses to identify the documents you want to present as evidence. You will first need to obtain testimonials that show that a document is indeed what you claim, before it can be admitted as evidence.
Step 5. Question the opposing party's witnesses
The purpose of cross-examination is to discredit the witness or minimize the testimony by showing that they are biased or do not know enough to testify on the matter.
- You can discredit a witness if they made an inconsistent statement before. If a witness ever praised you in your role as a parent, you can use their statement if now that same witness claims that you are a bad parent.
- If someone testifies that you and your child are fighting, then you can minimize the harm by noting how often that witness sees you with your child.
- Try to stay calm all the time. If you feel like anger is overwhelming you, close your eyes for five seconds and take a deep breath.
Step 6. Make a closing statement
Your attorney (or you) will present a summary of your case, explicitly linking the evidence to what is in the best interest of the child, based on the factors provided by your state statute.
Counter the facts that do not favor you in the best way. If you have a criminal record, then acknowledge that fact before highlighting the evidence that shows you have lived responsibly over the past few years
Step 7. Wait for the court's decision
Once the trial is over, the judge will make a decision on your case. If you win, you will have obtained full custody of your child. If you were unsuccessful at trial and you think they made a mistake, you may decide to appeal the judge's decision.