How to Obtain Legal Custody of a Child
Custody of a minor child is generally determined pursuant to a divorce proceeding. It is best to attempt to gain custody of your child at that time. However, it is possible to obtain custody after the divorce has been finalized by filing a motion to modify custody. State laws vary regarding divorce and custody laws and procedures, but the general philosophy is that the court looks to what is in the best interest of the child.
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Instructions
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Pursuant to a Divorce
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Research the divorce and custody laws for your state. State laws vary as to how they determine custody issues as well as the exact procedure for petitioning for custody. State laws can be found on court websites, at a nearby law school or at the local library.
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Prepare a petition for divorce. Many state courts have self-help websites that include petition forms. Links to state court self-help websites can be found on the National Center for State Courts website(see the Resource section for a link).
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Include in the petition that you are asking for custody of the minor child of the marriage.
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File the petition with the clerk of courts and pay the required filing fee, which varies by jurisdiction.
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Attend all pretrial hearings and follow all orders of the court. Many states require that you attend a parenting class, participate in an in-home evaluation or attend mediation. Where custody of minor children is an issue, abiding by court orders and cooperating with the judicial process is extremely important.
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Attend the final hearing that is set by the court. If you and your spouse have reached an agreement that grants you custody of the child, you may present it to the judge at the hearing. If you are not in agreement then the judge listens to testimony and reviews any evidence presented at the hearing and makes a custody decision after the hearing.
After a Divorce Proceeding
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Research the state laws in your state that pertain to modification of custody. Some states do not entertain a request for modification for at least one year after the original order unless there is an emergency or an extreme change in circumstances. State statutes can be found online through court websites or at the local public library or law library.
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File a motion to modify custody in the same court where the original divorce was granted. Many court websites have forms that you may use to construct your motion. Links to court self-help websites can be found on the FindLaw website (see the Reference section for a link). If a form is not available, caption the motion the same as the caption on the original decree of divorce. Title the motion "Motion to Modify Custody." Include in the body of the motion when the divorce was granted and what the original custody terms were. Then tell the court what changes you are asking for regarding custody and why. Sign the motion.
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Make several copies of the motion. File the motion with the clerk of courts where the original divorce was granted. Serve the other parent with a copy.
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Attend the hearing ordered by the court pursuant to the motion. Answer any questions that the judge asks of you and explain to the judge why you are requesting custody of the child. The judge rules on your motion at the end of the hearing.
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Tips & Warnings
It is always advisable to consult with an attorney before proceeding pro se if possible.
References
Resources
- Photo Credit child image by Renata Osinska from Fotolia.com
