The procedure for seeking custody of children varies from state to state, but courts nationwide use the same standard for awarding custody. Judges seek to determine what is in the "best interests of the child," whether it is full or shared custody.
There are two kinds of custody to consider: physical custody and legal custody. Physical custody refers to where children live, while legal custody refers to who makes decisions for the children involving schooling, health care and other activities. Full custody can mean sole legal and physical custody or some combination, such as sole physical custody and shared legal custody. For example, the children may live with the mother, i.e. sole physical custody, while she shares decision-making responsibilities with the father, i.e. shared legal custody. Each state has its own definition of what is meant by the terms full, sole, joint, split and shared custody. Make sure you know what full custody is in your state and be prepared to convince a judge that the arrangement is in the best interests of your children.
Filing for custody involves filling a written petition in which you ask for full custody and state the reasons why it is in the best interests of the children. A petition for custody can be filed during a separation or divorce action, or a motion can be filed seeking a change in custody after an order has already been issued in a divorce or separation. An unwed father can file a petition seeking custody if he can establish paternity. When you file a petition for custody, you will have to file a sworn statement that lists all of the addresses where the children have lived and any other legal actions that have involved the children. This is a requirement of the Uniform Child Custody Jurisdiction and Enforcement Act, which almost every state has adopted. The purpose is to enable the state to determine whether it has the authority, or jurisdiction, to rule on the custody matter. Some states require a financial declaration. Each state has its own requirements. After you file your documents, you must properly serve them on the other parent and provide proof of service to the court.
Almost every state has a specific list of factors set forth in state law that judges must use to determine the best interests of the children. Judges try to decide which parent is more fit to have custody of the children by examining each parent’s psychological and financial fitness, moral conduct, past relationship with the children, and willingness to cooperate with the other parent. The living situation is another important factor as judges look at the size of the home and who else lives there. Relationships with extended family, school grades and a child’s preference also might come into play. Consult your state code of laws by searching online or visiting a library to find out what the specific factors are in your state.
When a custody case is contested, most states encourage the parents to try to work out a compromise through mediation or a settlement agreement. If that is not possible, the judge often seeks help from counselors and psychologists, who prepare evaluations of the children and sometimes the parents. Guardians ad litem are court-appointed attorneys who represent the children during the legal battle. GALs often visit the home and prepare a home study for the judge. GALs also frequently interview teachers and coaches of the children. Before a trial, the GAL will prepare a statement with his opinion on custody and may testify during the trial.