How to Petition for Custody

One of the most complex of all types of family law cases is one to establish or change custody of a child. Therefore, if you contemplate filing a motion to change custody of your child, be certain you fully understand the applicable law and court procedure associated with a petition for custody. The process of establishing or changing custody in either a paternity or divorce matter commences with the filing of an appropriately prepared motion to establish custody or a motion to change custody.

Instructions

1. Obtain from the court clerk a standard form or sample motion. Court clerks typically maintain some basic forms and examples of motions. If custody is not established in a paternity or divorce case, prepare a motion to establish custody. If an order of custody was previously issued and you want to alter the arrangement, prepare a motion to change custody.

2. Complete a standard form motion provided by the court, or prepare a motion based on the sample obtained from the court clerk.

3. Allege in a motion to establish custody that you are the suitable parent to have primary custody of a minor child. Two important points to make are that you historically were the primary caretaker of the child and that the best interests of the child are served by establishing primary custody with you.

4. Argue in a motion to change custody that a "material change of circumstances" occurred affecting the current custodial arrangement. Be certain to use the phrase "material change of circumstances." Examples of material change of circumstances include abuse or neglect of the child by the parent currently vested with primary custody, the decision of the custodial parent to move out of state or a parent inappropriately denying you access to the child to exercise your parenting time (visitation) rights.

5. Send a copy of the motion to the other parent.

6. File the motion with the clerk of the court.

7. Obtain from the court clerk (or the administrative assistant of the judge assigned your case) the date and time of a hearing on your motion.

8. Notify the other parent of the scheduled hearing if the court is not sending out notifications. Typically, when attorneys are involved in a case, they are required to make this notification. However, if you are unrepresented, the judge's office or court clerk likely will make this notification for you.

Tips & Warnings

• Establishing--and particularly changing--custody of a minor child is complex. Your interests likely are best served if you retain the services of an experienced family law attorney. You can access directories of attorneys in different areas of practice through both the state and local bar association. Contact information on these organizations is available through the American Bar Association.

• Never underestimate the difficulty in prevailing on a motion to change custody. The standard of "material change of circumstances" is difficult to meet. Do not file a motion to change custody unless you have sufficient evidence to demonstrate a current risk to the welfare of the child, or that the parent with custody intentionally prevents you appropriate access to the child.

References

• Find Law: State Laws on Divorce and Child Custody
• Cornell Law School: Child Custory Overview
• "Child Custody Made Simple: Understanding the Laws of Child Custody and Child Support;" Webster Watnik; 2003

Resources

• American Bar Association: Section of Family Law
• American Bar Association: Directory of State and Local Bar Associations