How to Petition the Court for Custody

By Larissa Bodniowycz, J.D.

How to Petition the Court for Custody

By Larissa Bodniowycz, J.D.

There are two aspects to custody over a minor child: legal custody and physical custody. Legal custody is the legal authority to make decisions for the child such as where they will attend school, what religion they will be raised in, and when to obtain medical care. Physical custody is who the child lives with.

People arguing in front of a child around a conference room

If you and your child's parent cannot reach an agreement on physical and legal custody, you need to petition, or ask, the court to grant the custody arrangement you want. There are generally three phases to petitioning for custody: the preparation phase, the filing phase, and the court phase. The exact requirements and process for each stage vary by state and facts of the case.

1. Decide what you want.

Start by taking some time to decide in detail what type of custody arrangement you want. Do you want sole physical custody? Are there decisions you would like to make jointly with your child's other parent? Where will your child attend school? These and other details need to be sorted out during the custody process.

Discuss your desires with your child's other parent. See if you can reach an agreement on any of the issues. The more you can agree on, the quicker and cheaper the court process will be.

2. Prepare to file.

Prepare to request custody by learning about the child custody laws in your state and locating the required forms. You can research this information by looking online, contacting the clerk for your local court, or going to a public law library. Or, you can hire a family law attorney who will explain the law and guide you through the process.

Next, start gathering the information you will need to complete the forms to request custody. This information typically includes basic demographic information about your child, your child's other parent, and you; the type of custody you are requesting; and information on related proceedings like a divorce or paternity action. If you have hired an attorney, the attorney will give you a list of the information they need from you to complete the appropriate forms on your behalf.

3. File your request and provide notice.

Complete the document requesting your preferred custody arrangement and file it with the court. If you are in the process of a divorce from your child's other parent, this request will be part of your divorce filings. If there are no divorce proceedings, you will need to start a new court case by filing a petition for custody and paying the applicable filing fee.

In all cases, you will need to provide your spouse with notice of your custody request. The proper method of providing notice depends on whether the custody request is part of divorce proceedings or not and whether your child's other parent will agree to waive formal notice.

4. Present your case to the court.

You will be assigned a court date where you will have the opportunity to present evidence supporting your request for custody. The judge will ask you questions and may request additional information. The judge could also order formal evaluations such as a psychiatrist evaluation of your child or home visit.

There may be more than one court date required before the judge issues a decision. In a complex case, the judge can issue a temporary order on what the custody arrangement will be until a final decision is reached.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.