How to File for Custody of Your Children

Going through a divorce or separation is never easy. If you need to file for custody of your children, the process becomes even more difficult. Because you are required to go through the courts, the process is complex and drawn out. Every state has its own specific rules, so be sure to contact an attorney. Here's a general overview of how the process works.

Things You'll Need

• Credit card
• Attorney
• Checkbook

Instructions

1. Contact your attorney. Filing for custody is complex, rule-driven and hard to understand. It is best that you hire an experienced professional. Look for an attorney who specializes in family law and custody disputes.

2. Think like a judge. The judge will ultimately make the decision, so it's best to look at your situation through the eyes of a judge. All judges will base their final decision on what they feel is in the best interest of the children. This means the judge will consider such things as your financial, physical and mental well-being; what kind of home you have; the amount of contact you have had with the child since the separation; and whether you have any criminal history or allegations of child abuse.

3. Draft the petition. Your attorney will draft the custody petition for you, but you will need to supply the information. If there is already a custody order from the court, you will file a motion to amend the custody order. In the petition you will include your reasoning why the order should be changed. Your argument should focus on what has changed in either your or the other parent's life since the time of the original order that makes your having custody in the best interest of the child.

4. File the petition. You must file your petition with the clerk of court in the proper court. Filing becomes complicated when there is more than one state involved. Your attorney will know the rules, but usually jurisdiction is granted to the home state of the child. The home state is any state where the child has resided for at least six consecutive months.

5. Pay a filing fee. Every clerk of court's office determines their own filing fees. Fees typically range between $50 and $100.

6. Serve notice. After the petition is properly filed, notice of its filing must be served on the other parent. This can be done by regular mail, certified mail, sheriff or, in limited situations, by publication. Your attorney will handle this step.

7. Try to compromise. Once the other parent has an opportunity to file a response to your petition, the parties will often enter into mediation. Some courts mandate that the parties attempt to resolve the custody dispute by finding a compromise during mediation.

8. The final step is going to a hearing or trial. If no compromise is reached, the parties will have to go before a court and present evidence and testimony as to why it is in the best interest of the child to be in their custody. At the close of the evidence, the judge will make a decision.

Tips & Warnings

• When you meet with your attorney, ask him or her directly about previous experience with custody disputes.

• If you are unable to afford the filing fee or an attorney, try contacting your local Legal Aid office. This is an affordable option that is better than simply trying to represent yourself.

• Never take your children for longer than a court order says you can have them. This could constitute kidnapping, a criminal offense punishable by prison.