How To File For Child Custody On Your Own Or Through A Lawyer

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A divorce can be difficult, and more so if you have a child. Many uncertainties could pester you, and one of them is how to file for child custody. Divorce affects children in numerous ways, especially if they are minors, as they are apprehensive about being separated from one of their parents and might need to change schools or leave their friends. However, filing for a child’s custody becomes necessary if the parents decide to separate, and it may be an application for single or joint custody. You may or may not need the assistance of a lawyer for the process, but the court needs to hear from both petitioners before deciding what’s best for the child. If parents cannot reach any mutual agreement, a petition for custody and rules for visiting the child becomes a mandate. Keep reading this post where we explain the various types of custody and ways to file for one yourself or through a lawyer.

Types Of Child Custody

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.

Attaining a child’s custody is a crucial issue after divorce, as it could significantly impact your child’s future. Nevertheless, if your partner is abusive, addicted to drugs or alcohol, and you feel they cannot take good care of your children, you must fight for your child’s safety and custody. Therefore, it is ideal to have a detailed conversation with your partner about all the critical aspects of the procedure to make a mutual and most-favorable decision.

Key Pointers

  • After divorce, you may file a petition for single or joint custody of your child, with or without appointing a lawyer.
  • Child custody can involve legal and physical custodies that may be sole or joint.
  • Consider the interests of the children and make sure you and your partner are on the same page before filing for custody.
  • Learn about the custody laws of your state and get in touch with a court clerk to get the required legal help.

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Denise Perelli-Minetti

Denise Perelli-Minetti works from Pleasanton, California. Her legal practice focuses on Elder Law, Special Education, Mental and Health Disability Issues, Domestic Violence issues, and Estate Planning and Administration.   Denise is trained and experienced in Mediation, Victim Offender Reconciliation, and Domestic Violence Advocacy. She has completed the California Minor's training and is an advocate of the minor's rights.  Denise is a... more

sanjana lagudu

Sanjana did her graduation in Pharmacy and post graduation in management. It was during her first job, she recognized her skills in writing and began working as a freelance writer. Later, she completely moved into content writing and began working as a full-time content writer. Sanjana's articles in MomJunction cover topics related to new parenting and relationships. A fitness enthusiast... more