Divorces with custody issues can be emotionally taxing and financially overwhelming. If parents or guardians are willing to do the work, most state family court branches have extensive self-help resources that include forms and assistance to do it yourself. Many of these consultation services are free. Consider all aspects of custody before going to court because the judge is looking at what is in the best interest of the child, not you. Being prepared makes the process easier for involved parties and the courts.
Filing for Divorce
Custody orders are common in divorce proceedings. California has a six-month cooling off period after the petition is filed before a final decree can be obtained. Parties must attend mediation and parenting classes before final custody arrangements are made. Temporary custody orders can be sought prior to trial or final case settlement if required. Even when filing an Order to Show Cause for Temporary Custody, court-ordered mediation is still required. Courts prefer parents to agree rather than having the judicial system make decisions for the future of children.
In most states, basic forms such as a Petition for Dissolution, Summons and Proof of Service are required in the initial divorce filing. The Petition for Dissolution requests a divorce, and provides desired custody and support requests. The Summons and Proof of Service is used to legally notify your spouse that you have filed for divorce.
Emergency Custody Situation
Emergency custody orders are sought in situations where children's health and well-being are potentially in jeopardy. A noncustodial parent, relative or close family friend may seek custody to protect the child by filing a Petition for Emergency Temporary Custody. Drug or alcohol abuse, mental health issues or sexually open lifestyles are common reasons for emergency custody orders. The judge may require social services or court-appointed special advocates to investigate the accusations before making a final decision. Temporary emergency custody orders are established for the best interest of the child. Although this petition can be made without attorneys, the judge may order a court-appointed attorney, or Guardian ad Litem, to represent the child independently.
Child Legal Custody
Legal custody constitutes decision-making ability for the health and welfare of a child. These types of decisions include, but are not limited to medical decisions, school choices and activity participation. It is possible that a parent maintains legal custody without having physical custody. For example, children may live with mom, but dad may have decision-making ability on school choices. Parents may split legal custody 50 percent with an entirely different legal custody arrangement.
Most states start the custody process with a Petition for Child Custody. If uncontested, this petition becomes the basis of the final custody judgment. When parties disagree, an Answer to Petition for Child Custody provides an alternative custody agreement and reasons for it. Judges will decide the final custody arrangement if the parties don't agree. It is imperative to document any statements made in attempting to get or prevent custody. For example, if one party has domestic violence issues, documentation from police or hospitals should confirm accusations.
Physical custody refers to the time parents have with their children. For example, the child may alternate living with mom and dad every week. The custody petition should set forth both legal and physical custody parameters. Courts may also require a parenting plan submitted to the court. This includes specific drop off and pick-up arrangement times and locations. It sets forth how holidays are to be divided and any other special physical custody arrangements the parties outline. Parents can enroll in online family tools such as Our Family Wizard, recognized by national family courts, to aid schedules and resolve conflicts. If conflicts arise, courts can access the online records for documentation purposes.
Parents can agree to a support amount. But if they are unable to agree, the courts have worksheets that collect all financial data from both parties. Data includes income, expenses, assets and liabilities. It may also provide attributed income to a stay-at-home parent expected to return to the workforce. Based on education and work experience, a salary value is created off-setting what the other parent makes.
Once a child support order is in place, parents are obligated by law to adhere to the payments. If a party is not receiving payments either in part or at all, they can petition the state child support agency for free assistance in collecting child support. These agencies also petition courts on behalf of clients when income changes, obtaining a new order on behalf of the custodial parent receiving support.
Filing Costs and Fee Waivers
Filing fees range throughout the states and counties. Most state's petitions cost anywhere between $100 and $250. Additional fees for subsequent responses may be $30 to $100. Low-income families can apply for a waiver of fees and costs. The waiver application is often called Affidavit of Indigency. Most states approve fee waivers when income is 125 percent or less of the poverty threshold in the area. Self-help resources at courthouses assist in completing forms properly, usually at no cost.
- MassLegalHelp: Basic Information About Divorce and Separation
- Central Virginia Legal Aid Society: Child Custody and Child Visitation
- Bohm Wildish, LLP: What is Temporary Custody and Why is it Important?
- Our Family Wizard Parent Resource: Home Page
- California Courts: Forms
- Roane Courts: Petition for Temporary Emergency Custody