How to Get Custody of a Child?

Understanding Child Custody

Child custody refers to the legal arrangement and responsibility for the care and upbringing of a child. Custody matters are typically determined during separation or divorce proceedings. It includes legal custody, which involves the right to make important decisions regarding your child’s welfare, such as education and healthcare, and physical custody, which pertains to the location where the child lives along with which parent provides daily care.

Types of Child Custody Arrangements

The court can order different types of custody based on your family’s circumstances—and your personal circumstances. All states have some form of legal and physical custody, and most states have other types of custody, such as joint custody and sole custody.

• Legal Custody: The parties can share legal custody—the right to make significant decisions about your child’s upbringing, including education, healthcare, and religious decisions. In some cases, the court may order sole legal custody, which means only one parent can make major decisions on behalf of the child. The court may also order joint legal custody, which entails that both parents have major decision-making rights regarding their child.
• Physical Custody: The parties can also share physical custody, determining where the child lives. In many cases, the child lives primarily with one parent, while the non-custodial parent has a visitation order outlining his or her rights to spend time with the child. However, many states are throwing the old “standard” away and gravitating toward more equitable joint custody, where the child spends a significant amount of time with both parents—even as much as 50-50.
• Joint Custody: Full joint custody means both parents have legal and physical custody. Both have parental rights to make important decisions for their child, and the child spends time with both parents.
• Sole Custody: If the court orders sole custody, one parent has legal and physical custody of the child.
• Third-Party Custody: In cases where neither parent can adequately care for the child, the court may grant custody to a third party, often a grandparent or another relative.

Who Can File for Child Custody?

Both biological parents can file for custody and should, to avoid inadvertently giving up their rights. However, certain third parties can also file for custody if they believe that neither parent can adequately care for their children.

Depending on state laws, legal guardians and relatives can file for custody if they believe it is in the best interest of the child. Third parties must prove to the court that it is more beneficial for a child that the third party receives full custody of a child who is not theirs.

Generally, the third party is a legal guardian or a relative. However, the state of Missouri set a precedent when courts awarded an ex-boyfriend custody in a situation where the mother and biological father could not adequately care for the child. In this case, the ex-boyfriend initially believed the child was his and cared for the child as if it were his own.

However, in a state like Texas, if a third party wishes to take custody of a child, he or she must file a Suit Affecting the Parent-Child Relationship to request custody. Even a biological parent not married to the other parent must file this lawsuit if he or she wants custody. This order is actually contained in Texas divorce documents. However, these divorce documents do not pertain to those who were never married.

Ways to Get Custody of a Child Without Going to Court

Going to court is not the only way to obtain custody of your child. You have several alternative methods, including:

Mediation

In some states, mediation is mandatory, although it is a good idea to take advantage of the process where it is not mandatory, when possible. If you can resolve your differences in mediation, you can avoid a potentially long and expensive trial. If you cannot reach an agreement during mediation, your case will go to trial. If you are able to agree on all aspects of the divorce, you will have a short hearing to “prove up” your case.

Negotiated Custody Agreement

Mediation is not the only way to reach an agreement. Parents can negotiate a custody agreement amongst themselves or with the assistance of their attorneys. Plans should outline the terms of custody, visitation, and parental responsibilities. The agreement can then be formalized in writing and submitted to the court for approval, where it will be made legally binding.

Informal Custody Arrangements

Parents can also create informal agreements for custody and visitation. For example, you may agree that while the child lives with one parent, the other picks the child up from school and visits with the child each weeknight. You may also agree that the child spends every other weekend and every other major holiday with the other parent. These types of arrangements are generally created by two parents working together to keep the child out of daycare or to avoid hiring a babysitter while one or the other parent is at work. However, because there is no legal order—you do risk the other parent reneging on the agreement.

Process for Filing Child Custody Petition in Court

Generally, child custody is factor in divorce. However, for those who are not married and need to file a child custody petition, there are several steps.

Consult a Lawyer

While hiring an attorney is not mandatory, it is advisable to consult with an experienced family law attorney to understand your rights and the custody laws specific to your state.

Gather Necessary Documentation

You will need some important documents to file your custody case, including:

• The child’s birth certificate
• Proof of residence for both parents
• Relevant medical records
• Relevant educational records

If you cannot obtain these documents or your spouse refuses to share a copy with you, a family law attorney can help obtain them.

Complete the Custody Forms

Complete the custody forms, which are often available online from your county court’s website. You must fill them out accurately.

File the Petition

File the completed petition and accompanying documents with the clerk of the appropriate court in the county where the child resides. You might be required to pay a filing fee at the time of filing.

Serve Notice to the Other Parent

Serve the other parent with copies of the petition and summons, along with the additional documents you filed. Your state may allow you to use a sheriff or a process server to serve your spouse.

Attend Mediation

If your state requires mediation, you will need to set up a date with a mediator from the court program, or you can choose a private mediator. If your state does not require mediation you can skip this step, but we encourage those who cannot reach an agreement on child custody to attend a mediation, as you may be able to come to terms without having to go to court.

Court Hearing

If you do not attend mediation or if the mediation fails, you will have to take your case to court. It’s there, that you will be able to present your case, along with evidence and witness testimony.

Judgment and Orders

After reviewing all of the evidence in your case, the court will issue a judgment regarding custody arrangements, visitation, and financial obligations related to child support.

What Factors Do Courts Consider When Determining Custody?

Regardless of which state you are in, every state puts the best interest of the child first. Other factors that the court often considers include:

• Parental wishes
• The child’s needs and wishes
• Relationships between the child and each parent and siblings, including emotional bonds
• Adjustments the child may have to make for school and how well the child would adjust to the changes
• The physical and mental health of each parent and how it affects the parent’s ability to care for the child
• The probability of a parent being more cooperative and more likely to encourage a healthy relationship with the other parent and his or her extended family members
• The history of spousal abuse, child abuse, or neglect
• Financial stability
• Criminal record
• Child support compliance, including whether you are current on any existing child support obligations

How Do I Prepare for a Child Custody Hearing?

You can prepare for a child custody hearing by:

• Familiarizing yourself with your state’s laws
• Gathering the necessary documentation like an existing parenting plan, school records, medical records, etc.
• Seeking legal counsel from a family law attorney
• Practicing courtroom etiquette
• Knowing what to expect

Even if you retain a family law attorney, you should always know what to expect during the hearing and adhere to courtroom etiquette to form a favorable impression on the judge.

What Not to Say During a Custody Battle?

You can lose a custody battle, and sometimes, even visitation rights, if you say the wrong things during a custody battle. Things you should not say or do include:

• Making negative comments about the other parent
• Engaging in petty arguments or making petty complaints
• Making derogatory and/or sarcastic remarks
• Making threats
• Using aggressive language
• Criticizing the legal system
• Making disparaging remarks in front of the child
• Ignoring the child’s wishes
• Failing to pay child support

How Can a Child Custody Lawyer Help Me?

A child custody lawyer can help you navigate the complexities of custody disputes and work toward a favorable outcome. The attorney can help by:

• Providing knowledge of family law
• Reducing stress
• Providing skilled negotiation for a potentially better outcome
• Helping you to avoid costly mistakes
• Providing courtroom experience in the event of a trial
• Providing confidentiality and privacy

Why Work With Cordell & Cordell for Your Child Custody Case

An experienced family law attorney at Cordell & Cordell can help you through custody battles by providing knowledge of family laws and helping to negotiate custody cases.