Having to go through a divorce can be devastating, and is at risk of becoming worse if minor children are involved. When two parents decide to get divorced, children have to deal with a lot between a change in where they may be staying, how they divide their time between their parents, change schools, and end or start of new friendships.
In the event of a divorce, both the parents need to file for the custody of the children. The court would then hear from both parties and decide in the best interests of the children. You can file for sole or joint custody. This process can be done with or without the help of a lawyer.
If the parents cannot reach an agreement as to the custody and visitation regarding their minor children, then the parents should file a petition for child custody and visitation. Read this post to know the various types of custody and also how to file for it pro se or with the help of a lawyer.
Types Of ChildCustody
Whether the couple comes to a mutual agreement on the custody arrangement regarding their child, or decides to allow the court to decide the custodial and visitation arrangement, it is important to understand some common terms associated with child custody. Depending upon who you ask or how you research the term “child custody”, you will no doubt see references to legal custody and physical custody.
Legal custody refers to the ability to make decisions regarding your child such as where that child will live, where they will attend school, the doctors that your child will see, after-school activities such as sports and clubs, etc.
Physical custody refers to actually having your child. Unlike legal custody, in this type, the parent will have a right to influence the day-to-day lives of the children.
Both legal custody and physical custody can be further broken down into sole legal custody, sole physical custody or joint legal custody and joint physical custody. A parent may enjoy sole legal custody and share joint physical custody of the children with the other parent. Or, one parent may have sole physical custody of the minor child and share joint legal custody of the child with the other parent.
- Sole custody: Sole legal custody is when one parent has the ability to make decisions on behalf of the minor child without the approval from the other parent. This type is usually granted when one of the parents is abusive or an addict. In such a case, one parent will have full custody of the children. The other parent would have no say in the decisions taken regarding the children.
- Joint custody: Contrary to sole legal custody, joint legal custody is dependent upon both parents agreeing to decisions regarding their minor child or children. In most states, the court prefers to give joint custody, where both the parents have equal rights over the children, and the children have to spend equal time with both the parents.
- Grandparents custody: If none of the parents are available to take the custody, then the court would consider giving custody to the grandparents.
The custody laws in the US differ from state to state. Some states prefer to give a joint custody order, while in others, if the couple is not married, then the mother and there is no petition pending concerning child custody and/or visitation, the mother will have custody. If you are looking to file for sole custody of your child, you first need to know the custody laws in your state.
How To File For Custody Of A Child?
If both you and your partner have reached a mutual conclusion about child custody, then you can file for it in the court and get custody without much hassle. But, if you are unable to conclude, then you may have to go tthe legal process through the courts. Of note is the fact that custody and visitation is always an action that can be brought before the court while the child remains under the jurisdiction of the court. This is because as the child grows and matures, his or her needs may change requiring parents to revisit their current custodial and visitation agreements.
Filing the custody can be done by yourself or with the help of a professional lawyer. Before getting into the details, let us first examine some of the factors you need to consider before filing for child custody.
What You Need To Consider Before Filing For Custody?
Before filing for custody in the court, both you and your partner must consider a few factors that might influence the children’s lives.
- Always think about the interests of the children.
- Ensure you and your partner are in harmony with each other if you are looking for joint custody.
- Each parent should understand that visitation with the other parent is the child’s right to know both of their parents. Neither parent should stand in front of their child’s right to know either of their parents.
- If your partner is abusive or an addict, make sure you have all the evidence to prove it to the court.
- If one parent is awarded sole custody, it does not necessarily mean that a request for a change of custody by the other parent would be useless. However, it might be difficult for the other parent to change the custodial arrangement to joint custody.
Once you are sure of your motives, you can proceed to file for child custody on your own or through a professional lawyer. Here is a detailed procedure for both.
How To File For Custody On Your Own?
It is advised that you file the custody through a professional lawyer. However, if you are looking to file for your child’s custody on your own due to financial constraints or other reasons, here is how you could do it.
1. Find out the custody laws in your state
This could be a tedious and time-consuming task, but make sure you research and learn everything you need to know about the custody laws, legal loops, documents, and requisite forms. Having this knowledge will help you represent well and answer all the questions pertaining to the custody.
2. Get in touch with the court clerk
Once you have all the documents and forms needed, contact your local family court to get all the necessary papers to file the custody. In some states, these can be downloaded from the website, while in others, they need to be collected in-person from the clerk’s office.
3. Maintain clear records
You may keep a journal. The journal can be handwritten or written and stored electronically. When documenting incidents, it is important to include the date, time, who was present and briefly list or explain what happened. The use of bullet points and/or outlining is recommended.
Additionally, maintaining records is important even if the court does not actually look at the records because there are other ways to get this information to the court.
4. Carefully follow up the case
Your task is not done after filling in the forms since many forms might require a follow-up within a certain period of time. Make sure you keep track of everything and never miss any deadline. Also, keep all the papers organized so that you will have all the required information on your fingertips.
5. Make sure you are confident
Before going to the court, make sure you are confident about your representation. Rehearse your representation, and be sure of the type of custody and the visitation rights of your ex. If you feel otherwise, contact a legal intern or a friend who can review your case and give you some tips.
6. Use a polite tone in the court
Always keep your calm and use a polite tone while presenting your case. No matter how much you would be provoked, never lose your temper and shout in the court. Also, do not go beyond your case and stick to the facts. Ask the court (judge) if you may be heard. Don’t assume that you can just speak out no matter how tempting that may be. Do not bring your children to court unless ordered to do so by the court. Children should be left out the divorce proceedings as much as possible.
7. Do not get discouraged
Winning a custody case through self-representation is no cakewalk; there would be setbacks and multiple hearings, so do not get discouraged and give up. Focus on your end goal, what is in the best interests of your child(ren), and continue to work on it. In the end, not every battle with your ex-spouse is worth winning. The war that you should strive for winning is the ability to have a healthy and happy relationship not only with your child during the divorce process, but to be able to enjoy a strong and positive relationship with your child(ren) when they are adults.
How To File For Custody Of A Child Through A Lawyer?
Filing a custody case through an attorney is relatively easy as they would listen to your requirements, explain the process, fill in the paperwork, and represent you in front of the judge. As the lawyer would be experienced, you will have a better chance of winning, provided you have a strong case on your side. However, hiring an attorney can be expensive. It is important to interview at least two or three attorneys to see if they might be a good fit for your needs. You may have a child who has special needs or you may be coming from an abusive situation that could benefit from a lawyer familiar with divorce issues surrounding these scenarios. Or, you may want an attorney who will work with you on billing and payments or who will assist you on a limited scope basis. Limited scope attorneys are attorneys who are hired to represent a client on one particular issue of their divorce, such as a request to modify visitation.
Child custody is a delicate and important issue in a divorce process, as it decides the future of your children. When you and your partner decide to go on different paths, the best thing to do is sit, discuss, and come to a mutual conclusion regarding child custody. However, if your partner is abusive, an addict, or is incapable of taking care of kids, then you must fight for the safety of your children.