When parents cannot come to an agreement regarding child custody, the legal process to set the custody arrangement operates like a trial and must be resolved by a judge. Although you are not required by law to retain an attorney, each state has specific procedural and filing requirements that you must observe. For that reason, understanding what needs to be included in your paperwork and what factors a judge will consider in making custody decisions will help ensure that you are fully prepared and equipped to present your case to the court.
In order to effectively present your case without an attorney, you must first understand that all states make a distinction between two basic components of custody -- physical custody and legal custody. Physical custody, sometimes called residency, refers to where your child stays overnight. Legal custody, on the other hand, is the authority to make important decisions for your child, such as medical care and school choice. Each type of custody can be shared by both parents or awarded solely to one parent.
Most states encourage parents to resolve custody disputes amicably and develop a plan that allows both parents frequent and continuing contact with the child. If you and the other parent cannot agree, the matter is considered "contested," and the court will need to resolve the dispute. Each parent will have the opportunity to submit a parenting plan that sets forth their custody requests. In addition to indicating whether you are seeking sole or shared custody, you will likely be allowed to provide more specific details, such as an itemized schedule for physical custody that includes holidays and indicates how transportation will be handled. Fill-in parenting plan forms can be found on many state court websites or through an online legal document provider.
All states require judges to further the best interests of the child in making custody decisions. This standard allows the court to consider several factors, including which parent can best meet the specific needs of the child, the proximity of each parent's home to the child's school and activities, and the relationship between the child and each parent. In addition, states specify varying factors for courts to consider. Some states allow the preference of the child to be taken into consideration if he or she is of a suitable age or maturity level. Many states will not grant any custody rights to a parent that has committed domestic violence, unless certain steps have been taken to help ensure a safe environment for the child, such as the completion of counseling and drug treatment programs. It is important to know the exact factors used in your state to decide custody and to tailor the evidence you present accordingly.
Presenting the Case
Custody matters are highly fact-sensitive. This means that you will need to present evidence to the court at a hearing to demonstrate the reasons you believe your custody request supports the child's best interest. This can be in the form of witnesses, such as testimony from friends or family members indicating that you have a strong bond with your child. It might also include testimony from experts, such as a psychologist or pediatrician, explaining the nature of your child's special needs. You might also present documents, such as the other parent's criminal records, or report cards and drawings made by your child. Your objective at the hearing is to make a connection between the evidence presented and the factors the judge will consider in making the custody determination. Always stress your child's bests interests, rather than your own feelings, when making your case to the court.