How to Draft a Child Custody Affidavit

By Beverly Bird

If custody is a litigated aspect of your divorce, you won't need an affidavit for the trial, but you may need one at the beginning of your case. If you and your spouse can't agree on custody and visitation terms to govern the situation while your divorce plays out, you'll have to ask the court to issue a temporary order. In most states, this involves filing a motion, and a motion must be supported by an affidavit. Sometimes these documents are called certifications.

Explain What You Want

Begin your affidavit by copying the caption from your divorce petition. It should include your name, your spouse's name, the name of the court that has jurisdiction over your matter, and your docket or case number. In your first paragraph, explain to the court that you're filing the affidavit in support of your motion. You can then explain what you're asking the judge to order.

Explain Your Reasons

You must also explain to the court why you're making your request. For example, if you're asking for an order giving you temporary custody and establishing a visitation schedule for your children with your spouse, you might want to tell the court why you think you should be the custodial parent pending your divorce. Give examples to back up your reasoning, but try to keep your statements fact-based rather than use conjecture. For example, you can say, "My spouse does not use a car seat when driving with our baby," rather than, "I don't think my spouse always uses a car seat." However, you must be sure that what you're saying is true, and you can attach exhibits to your affidavit to prove your statements. For example, after you explain that your spouse doesn't use a car seat, you can say, "See Exhibit 1," then attach a photo of your spouse driving your baby without one or a notarized statement from someone attesting to this.

Divorce is never easy, but we can help. Learn More


Affidavits are made under penalty of perjury, so when you finish explaining everything to the court, you'll need a final paragraph stating that you're aware of this. You can say that everything you've said is accurate and true, and that you're signing the affidavit with the knowledge that if you've lied, you're subject to punishment. Your spouse or his attorney then have the right to produce your affidavit as evidence at trial when you're litigating a permanent custody arrangement at the end of your divorce proceedings.

Responsive Affidavits

You may have to draft more than one affidavit as part of your motion to the court. Your first one supports your notice of motion, and after you file it with the court and serve a copy on your spouse, he or his attorney have a legal right to respond. Your spouse can file his own affidavit denying or rebutting what you've said in yours, or he can even file a motion of his own, called a cross motion, asking for his own relief. For example, he might respond not just by saying you should not have custody, but by asking the court to grant him temporary custody instead. You have the final word, however. You can file another affidavit rebutting what he said or explaining why the court should not grant his cross motion. Court rules can vary somewhat by state, but typically, your second affidavit is limited to addressing what your spouse said in his – you can't present new arguments.

Divorce is never easy, but we can help. Learn More
How to Write an Affidavit for a Divorce



Related articles

How to File a Motion in an Existing Child Custody Case

A motion is the legal device used to ask the court to change something when a lawsuit already exists. While a petition or complaint starts a lawsuit, a motion seeks immediate action. A motion can be filed to seek child support while a divorce is pending, for example. After a divorce is granted, a motion can be filed to try to modify the visitation schedule set at the time of the final hearing.

How to File for Child Custody in Washington State

Custody of your children can be a major issue before, during and even after divorce. During your divorce process, you may need a temporary order to hold your custody arrangement in place until your divorce is final. After divorce, circumstances may change, warranting a change of custody. Although custody litigation is never easy, the process of filing to initiate a custody decision is relatively straightforward in Washington.

How to Serve Divorce Papers in Texas

Often, the easiest part of getting a divorce is filing your petition with the court. Your next step after the court filing is to inform your spouse that you’ve filed the initial papers in the proceedings. This is known as “effectuating service,” and involves ensuring that your spouse has a copy of your divorce petition. Texas law allows you to accomplish this in a variety of ways.

Get Divorced Online

Related articles

Can You Revoke a Sworn Affidavit in a Divorce Case?

The divorce process is riddled with occasions when you're asked to sign documents under oath. Most include language ...

What Documents Do I Notarize for Divorce?

In any situation where serious legal fallout might occur if you’re not who you say you are, courts usually require ...

How to Draft a Counter Claim in a Divorce

If your spouse has filed a complaint for divorce, it’s important that you answer it in some fashion. You don’t ...

Types of Pleadings in a Divorce

Like any legal matter, divorces can generate reams of paperwork. It can be a bit overwhelming, especially when ...

Browse by category
Ready to Begin? GET STARTED