Custody of a child generally gives an adult the right to provide for the minor's daily care and education. This custody can be legal, physical or both. Physical custody can be either full-time or be divided with another parent or caregiver. While a child's natural parents are the most common parties to petition for custody of a child, in some instances, grandparents or other relatives with close relationships may share custody with a parent who is hospitalized or incarcerated. Likewise, if a child's relative raised a child for a significant portion of her life, that relative may have a claim to custody if a parent becomes ill or unable to care for the child. To request legal custody of a minor child, you generally will need to petition the court and attend a hearing in front of a judge. That said, the exact process for petitioning the court for custody varies between jurisdictions, so it is important to understand your state's law before beginning any legal proceedings.
Determine the requirements for applying for custody. Each state establishes is own procedures for petitioning the court for custody of a child, so you will need to research the rules that govern your case before you begin formal legal proceedings. You can research these rules independently using Internet resources, visiting a law library or hiring a private attorney.
Prepare a petition for custody. The first phase in the petitioning process is to prepare a formal document asking the court for custody. You must format this document according to your state's requirements, so you may find it useful to begin with a template issued by the clerk of the court. You can also purchase a custom custody petition from a document preparation service.
Provide information about the child and each parent. The custody petition should list the child's full name, date of birth and current address. Additionally, the document should list each parent's full name and address, as well as your name, address and relationship to the child.
State your desired custody outcome. The petition for custody should request a specific custody arrangement, such as sole custody or joint custody. If you are requesting sole custody, explain why the other parent should not have custody and present evidence explaining why the other parent is unfit.
File the petition for custody in the appropriate jurisdiction. Under the Uniform Custody Jurisdiction Enforcement Act, you will generally need to file the petition for custody with the clerk of the court in the child's county or city of residence, even if that is not where you live. In most instances, you will need to pay a filing fee to the court when you file the custody petition.
Serve the custody petition on the child's current custodian. After filing the petition with the court, you will need to provide the child's parents or current custodian with a copy of the petition. Each state has difference requirements on how to serve a petition, but generally, you can use a private process server, sheriff or registered mail to effect service.
Provide the court with proof of service. After you have served the child's custodians or parents with a copy of the custody petition, file with the court a copy of the process server's affidavit or the mail receipt that the custodians or parents signed.
Wait for your court date. After filing the petition and proof of service, the court will assign you a hearing date. At this hearing, you will have the opportunity to present your case in front of a judge. The child's current custodian will also have the opportunity to argue her case.
Compile evidence that supports your custody request and present your evidence to the court. At the hearing, the judge may want to see evidence supporting your request for custody. For example, you may need to show that you can provide a safe, stable home and are mentally fit to care for the child. As evidence, you may need to provide copies of your lease or mortgage or provide character witnesses who can attest to your ability to meet the child's day-to-day needs. The judge may also ask a trained child custody evaluator to visit your home an interview you and the child. After the court date, the judge will make a custody determination.
Tips & Warnings
Because the exact definitions of custody and processes of petitioning for custody vary by state, contact an attorney or legal professional if you are unsure about how to proceed.
To ensure that your separation agreement complies with state law, contact an attorney or a legal document website.
References & Resources
- California Courts: Petition for Custody and Support of Minor Children
- FindLaw: Deciding Who Gets Custody FAQs
- USLegal: Child Custody Law & Legal Definition
- Cornell University Law School Legal Information Institute: Child Custody
- University of Pennsylvania School of Law: Uniform Child Custody Jurisdiction and Enforcement Act
- Lawyers.com: Third Parties' Rights to Custody of a Child
- Woman's Divorce: Sole Custody Issues
- Massachusetts Legal Services: Child Custody
- Jupiterimages/Polka Dot/Getty Images