Because child custody disputes can be contentious and stressful, family courts encourage parents to settle their disputes on their own. This not only shields the child from the stress of a custody fight, but it also allows the parents the autonomy to work out a custody plan that works with both parents' schedules and the child's needs. When one parent refuses to sign a proposed parenting plan or settle a custody dispute, however, you will need to use the court system to resolve your custody issues.
Petitioning for Custody
If the other parent won't sign a custody agreement, you must petition the court to settle the matter. In many states, it is the family or superior court that handles custody proceedings. File your petition for child custody or visitation in the county where your child lives. In many states, you can access the forms you need on the court's website. The clerk may also be able to provide you with a copy of the form. Most states require that you include a parenting plan, which itemizes your proposed custody and visitation schedule, with your petition for custody.
Types of Custody
Legal custody governs who makes decisions regarding the child, and many states have a presumption in favor of joint legal custody. Physical custody governs with whom the child lives. When one parent has sole physical custody, the other parent almost always gets some variety of visitation. In your petition, you should address both legal and physical custody. In cases where both parents have been actively involved with the child, many states require judges to consider joint custody.
After the filing of your petition, if you and your ex are still unable to agree on custody, the court will schedule a trial. The court may order you to attend mediation or counseling before the trial. Judges in all 50 states issue custody orders according to the child's best interests. Judges consider a variety of factors such as each parent's parenting competence and the relationship each parent has with the child. You must demonstrate why the custody plan you have proposed is in your child's best interest. For example, if you are petitioning for sole physical custody, you must present evidence that the child will benefit more from living with you or that the other parent is not equipped to be the child's primary caretaker.
If there is a previous order in your custody case and your ex will not agree to change the custody plan, you may seek a custody modification. Most states require that you demonstrate a change in the child's circumstances that warrants the custody change. Explain the changed circumstances in your modification petition. Examples of changes include one parent's move, a change in the child's emotional state or a change in one parent's ability to parent.
- The Art and Science of Child Custody Evaluations; Jonathan W. Gould, et al.
- Cases and Materials on Family Law; Judith C. Areen
- Family Law, 4th Edition; Leslie Harris, et al.
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