In most states, custody of children is divided between "legal custody" (decision-making authority) and "physical custody" (residence). Joint custody, is an arrangement that allows both parents to make decisions and/or give physical rights regarding their child. If both parents can agree on all aspects of legal and physical parental responsibilities, then a joint custody agreement is generally an easy process. However, sometimes one parent has to file a case for joint custody.
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Part 1 of 4: Understanding When You Can Apply for Joint Custody of Children
Step 1. Start filing while you are still married
If you are currently married to the child's other parent, you can apply for custody after you have made one of the following submissions:
- Divorce, annulment, or legal divorce may be filed if you wish to end your marriage with the child's other parent;
- Protection against domestic violence, can be applied if you are a victim of domestic violence;
- Petitions for custody and support of minors may be filed if you and the other parent of the child do not wish to divorce, but you wish to set up custody arrangements for other reasons; or
- Child support agency, which happens if you are the subject of a local child support implementation.
Step 2. Begin the process if you are not married
If you are not married to the child's other parent, you can apply for custody after you have done any of the following:
- Application for descent, filed when the parents are not married but have children together;
- Protection against domestic violence;
- Petition for custody and support for minors, filed if you and the other parent were never married at all; and
- Submission of child support institutions.
Step 3. File a custody court petition after you've started your case
Once you have opened the proper family law case, you will need to apply for custody of your child. This article will help you through the process.
Part 2 of 4: File an Application for Joint Custody of the Child
Step 1. Consider hiring a lawyer
If you can afford to hire a family law attorney, you should consider hiring one to help you navigate the custody process. See this article for instructions on how to find a good family law attorney. Even if you can't afford full attorney services, many attorneys provide limited services for a reasonable fee. This means you can hire an attorney to prepare your paperwork, provide limited legal advice, or potentially even teach this area of law, without having to pay an attorney to do the entire custody process.
Step 2. Find a suitable court
Apply for joint custody in the same court when you opened your family law case. Generally, you open a family law case in the country where your child lives. This applies even if you live in a different state.
Step 3. Complete the required forms
To petition the court for joint custody of children, you must complete an application form. This form will ask you to provide information including the custody application and the facts that support your application. These facts should show why you deserve child custody and how your application for custody is in the best interests of your child.
Since you are petitioning for joint custody, you need to decide what type of custody you want. You can seek physical or legal custody, or you can share one or both of these duties with the child's other parent. Regardless, since you are applying for joint custody, you cannot claim full control over the legal and physical liability of the child
Step 4. Review your form
After you have filled out the required forms to request a custody hearing, you should review them carefully. This form will form the basis of your submission's arguments, so please ensure that the form is filled out accurately and completely. If you don't want to ask a lawyer for help, consider using the free legal resources available to you. For example, in California, you can contact a family law facilitator or self-help center for assistance in the following forms. If you are in California, use this link and this link for more information on the resource.
Step 5. Submit the form
Once the form is reviewed and you decide you are ready to file, go to your local courthouse to file the form. At the courthouse, file your form with the bailiff. The bailiff will take the form and ask you to pay a filing fee. Application fees vary by state, even by county. If you are unable to finance, you can always request a fee waiver. To get a fee waiver, you must show evidence of financial difficulties. For example, you can show that you receive public assistance or do not have enough income to meet basic needs and pay filing fees.
Step 6. Give the summons to the other party
When you call the other party, you will hire someone (the police chief or other competent adult) to provide a copy of your documents to the other party for further review and response. In order to summon the other party, the person you employ must provide them with the necessary documents, either in person or by mail. If you are sending a summons by post, it must be sent by certified mail. In Pennsylvania, this process must be completed within 30 days of filing the document in court. In some other states (for example, Michigan), you must also provide answers to the other party at least five days before the hearing if the summons is by mail, and at least three days before the hearing if the summons is made in person. For more information on subpoenas, see here.
In addition to subpoenaing the other party with documents filed with the court, you must also attach a blank response form and a blank Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act form. These documents will be used by the other party to respond to your lawsuit
Step 7. Wait for an answer
Once you have successfully summoned the other party with a joint child custody petition, the other party has the opportunity to respond to your request. When the child's other parent answers your request, they have the option of agreeing to your request or denying some or all of your request. They may also give no answer at all.
- If the child's other parent refuses to answer, you can apply for an automatic judgment decision.
- However, automatic decisions cannot solve all problems. For example, a court may modify visitation if the child lives in the same state as you, but the child's other parent lives out of state. However, courts may not be able to modify child support from out-of-state parents.
Step 8. Go to mediation
If the other party submits an answer and you don't get an automatic decision, some courts will require you and the other party to mediate before you go to court. If your court requires mediation, you and the other party should seek good faith to agree on the custody provisions there, which will allow you to avoid litigation. For more information on mediation, see here.
Step 9. Submit a deal
If you and the other party are in mediation, and you reach an agreement so that you have joint custody of the child, make an agreement that is signed by the court and which will become a valid child custody warrant.
In California, to ratify a custody agreement, you must first complete a Stipulation and Order for Custody. After you fill out this form, you will get the judge's signature for the terms and order and you will submit it to the bailiff
Part 3 of 4: Preparing for the Trial
Step 1. Understand what evidence you need in court
If you are unable to reach an agreement during mediation, or if your court does not require or offer mediation services, you should attend court and tell the judge why you deserve joint custody of the child. Since you are seeking joint custody, the court will study various factors to determine your child's "best interests". These factors will vary by state. These factors will be listed in either a law passed by the legislature or a court opinion issued by your state's highest court.
- Courts will judge based on different factors, depending on the state. Michigan, for example, considers important factors to include: the love and affection that exists between both parties and the child; the ability and willingness of the parties to provide food, shelter, clothing, and medical care; parental morals; the stability of the parental environment; and the mental and physical health of the parties.
- Among various factors, Kentucky considers the child's wishes; adjustment of children to home, school, and society; the mental and physical health of all individuals involved; as well as the interaction and relationship of the child to each parent and sibling.
- To see factors specific to your state, search for the keyword "best interests of the child" and then your state.
- Understanding what you have to prove in court will make it clear what kind of evidence you should look for during the discovery process. For example, you need to prove your physical health, your willingness to provide food and medical care, and a stable home environment. You also need a strategy to fend off attacks against the same characteristics.
Step 2. Think about the science of parenting
Studies in developmental psychology show that children form attachments in the first three years of life. Breaking the bond between one parent and child, especially if the child lives with both parents for many years, can have psychological consequences.
- This concept is well known throughout domestic relations courts, so if the child has been in the care of both parents for three years, tell the court that continuing to have a relationship with both parents is in the child's best interest.
- To show that you consider your child's best interests, include evidence that your home and where the child grew up is close to your child's school, that your job will not take up much of your child care time, and that you do not have any illnesses that could interfere with your child care.
Step 3. List the details about your child's life
Write down what classes your child took. Write down who the doctors, teachers and other important influences were.
- Include details about the memories you had with your child the last time you cared for your child. If your child is with you, make sure you ask him what is going on at school and with friends.
- If you are unable to obtain information on your child's current activities, make sure you know the basics about your child, such as your child's age and grade, before attending a hearing.
Step 4. Show that your child's routine will not change
To show that you can provide a safe and stable environment for your child, show that you live near your child's school. It also shows that your child's routine will not change while they are living with you. They also do not have to go through a long journey that is strenuous and tiring.
Step 5. Show that you can provide a support system for your child
You have to show that you will be home when your child is home. This means that you won't often leave your child alone or with a caregiver while you are working or busy. If not, indicate that there are relatives who will stay with your child when you need to be away from home.
For example, if your child lives with you and you have to work late, you can indicate that grandparents or other relatives can stay with your child while you are away
Step 6. Create evidence of your mental and physical health
In order to obtain custody, you must prove that you are mentally and emotionally healthy and physically capable of taking care of the child. You must not have a physical or mental illness that could cause you to neglect your child or put your child in danger in any way. Make evidence of good physical and mental health with a statement or medical record from your regular doctor.
A person suffering from extreme paranoid schizophrenia will not be able to get custody of the child. Because this condition can put the child in a dangerous situation
Step 7. Show that you are proactive in dealing with health issues
If you have a condition that could interfere with your ability to be the primary caregiver for your child, you must demonstrate that you have taken proactive steps to address the condition. In addition, explain why this condition will not interfere with your abilities and duties as a parent.
- For example, if you are diagnosed with mild depression, you will need to present your medical history to the court. Explain that you regularly see a therapist and have been on medication for many years.
- You must also accompany information showing that you have never put your child in harm's way because of your medical condition. Evidence of this could be a statement stating "I have never put my child in danger because of my condition (whatever it is)."
Step 8. Confirm that there is no history of violence and abuse
Show that you have never committed violence and abuse. This includes mental, physical and sexual abuse, as well as drug and alcohol abuse.
Step 9. Write down the reasons why joint custody is the best option
It would be good for you to think about the reasons why joint custody would be the best option for your child. If you are concerned about having to memorize your arguments, feel free to write them down, along with any thoughts that came up during the trial.
Step 10. Engage in discovery
The first pretrial stage you will face is discovery. During discovery, you have the opportunity to gather facts, obtain witness statements, find out what the other side will say in court, and assess how well your case is doing.
- If you are involved in unofficial discoveries, you can interview witnesses, collect documents, and take photos. All of this is considered an informal discovery process because you can do it yourself with people who are willing to work with you.
- If you need official discovery, you should take advantage of various ways to get non-cooperating parties to provide you with the information you need. This method includes, examination questions, questions that the other party must answer in writing; deposition, directly interviewing the opposing party or witnesses; application for documents, asking the other party to provide the documents you wish to view; and a plea for confession, asking the other party whether certain statements are true.
Step 11. Meet for a parenting evaluation
Often, in the early stages of a custody lawsuit, the court will ask you and the child's other parents to go through a parenting evaluation, which will then go to court. A parenting evaluation is usually a report, written by a professional, providing an opinion on the skills and abilities of you and others in parenting.
- You may have to take part in an interview, some with the child's other parent and some on your own. The assessor will ask questions to determine whether providing joint custody would be in the best interests of the child. For example, you may be asked, "How do you show affection for your child?"
- You may also be asked to provide the assessor with community and school records. Assessors may want school records, such as disciplinary violations, or records of community activities your child participated in. You must sign the release for raters to access it.
- The appraiser may also want "house records." This includes information about the child's behavior (sociable or introverted), as well as disciplinary and relationship issues with siblings.
Step 12. Schedule your trial
Towards the end of preparation for the trial, you should schedule time to actually attend the trial. To do this, contact the bailiff and ask for a trial date. You may have to go to a judge to convince them that the date set is suitable for both parties and everyone is ready.
Part 4 of 4: Going to Court
Step 1. Arrive on time
On the trial date, arrive at the courthouse early. You will be asked to go through a security checkpoint, which will look and feel like airport security. Once you've gone through security, head to the courtroom and wait for your case to be called.
Step 2. Wear the right clothes
An important part of being successful in court includes dressing professionally. Courtrooms are considered professional and serious places, so you should dress accordingly. Always wear a suit if you have one. You should avoid wearing shorts, sandals, and hats.
Step 3. Deliver the opening statement
You or your attorney must submit a list of evidence to be presented. The opening statement should be brief, but should summarize the evidence that will support your claim for full custody.
Don't get involved in the argument. Emotions can be stirred up in a custody hearing, but there is nothing to argue about during the opening statement as no evidence has been presented to the court
Step 4. Call witnesses
As the applicant (the person who asks for joint custody), you will first present the witnesses. The respondent (the child's other parent) will have the opportunity to cross-examine each witness.
- Don't ask leading questions. Leading questions state facts and ask witnesses to agree. An example of a lead question is "You never hit your child, did you?" Instead, the attorney should ask a series of questions such as "How often has your child been naughty?" "Did you punish him?" "How do you punish him?" Then the lawyer can ask, "Have you ever hit your child?"
- Ask the witness to identify the document you wish to present as evidence. You must first obtain testimony that the document is your claim before it can be accepted as evidence.
Step 5. Cross-examine witnesses from the other side
The purpose of cross-examination is to discredit the witness or minimize testimony by showing that the witness is biased or does not know enough to testify in this matter.
- You can accuse witnesses with inconsistent statements. If the witness has praised you as a parent, then inconsistent accusations can be made if the witness now claims you are a bad parent.
- If someone testifies that you had an argument with your child, then you can minimize the statement by highlighting how rarely the witness sees you with your child.
- Try to stay calm. If you feel overly angry, close your eyes for five seconds and take a deep breath.
Step 6. Provide closing arguments
You or your attorney will summarize your case, explicitly linking the evidence to your child's best interests provided in state law.
Get rid of bad facts as best you can. If you think your criminal record is not clear, admit that fact before highlighting evidence that shows you've been living responsibly for the past few years
Step 7. Wait for the court's decision
Once the trial is over, the judge will make a decision regarding your case. If you win, you will get joint custody of your child. If you are unsuccessful in court, you can choose to appeal the judge's decision if you think they made a mistake.
