The best interests of the child is the standard family courts use to determine custody throughout the United States. This standard is applied by considering a list of factors that is similar in most states. Because custody decisions are made on the state level, the procedure to file a petition for custody varies from state to state. However, showing that the requested custody is the best decision for the child in accordance with state laws is requisite.
Determine where to file a petition for custody. Usually you can file in the home state of the child. The Uniform Child Custody Jurisdiction Enforcement Act dictates where you can file and how the states must cooperate with each other if there is a discrepancy. The UCCJEA can be found in libraries or on the Internet at many law form or law school sites, such at Penn Law. Ask the clerk of court in the county where you live if you are unsure.
Ask the court clerk if the court makes custody forms available, if you are drafting your own petition. In the alternative, conduct an Internet search for a sample petition. Most court clerks will suggest that you consult a lawyer if you are filing a custody petition that is likely to result in a battle.
Draft your custody petition emphasizing the factors used by your state to determine what is in the best interests of the child. You can find a copy of the state code of laws, which generally lists these factors, in a library or the Internet at the state judicial site. The factors usually include points such as the parents' wishes; the child's wishes; the child's adjustment to her present home and relationship with both parents; the parents’ attitudes toward cooperating with each other; the health of all parties; instances of abuse or violence; and whether any party is a sex offender or convicted felon.
Complete a UCCJEA affidavit, which lists the addresses where the child has lived, who else lived there, the primary caretaker in each location, and any court cases that have involved the child. The court clerk can provide you with a UCCJEA affidavit form, or you can find a sample form on the Internet by requesting it from an online legal document provider.
Prepare a summons, which informs the other parent where he can send a response and how long he has to answer. In some counties, the court will prepare this document for you.
Sign all documents in the presence of a notary public or court official, if required in your state.
File these documents and any others required in your state with the clerk of court by paying the filing fee and presenting the originals and two copies. Keep a copy for yourself and one for the other parent. If you cannot pay the filing fee, ask the court clerk if you can request a waiver.
Serve the documents on the other parent by having a law enforcement officer or process server deliver the documents to him. In some states, you can serve the petition by certified mail restricted delivery or you can have a relative or friend over 18 who is not mentioned in the petition deliver the documents.
File a document signed by the person who served the papers with the court to prove that the other parent received proper notice. This is called proof of service or affidavit of service and usually can be obtained from the court clerk or online.
Request a hearing from the clerk of court after the designated time period for the other party to respond has elapsed. Provide notice of the hearing date, time and location to the other parent.