Custody cases represent some of the most legally complex and emotional of family law proceedings. The process becomes more complex if the father of the child cannot be found. In order for a judge to be able to issue an order in such cases, including one for custody, the court must have what legally is known as jurisdiction over both the mother and the father. Jurisdiction normally is achieved by serving the father (or the mother, as the case may be) with a summons and petition---so called "divorce papers." If the father cannot be found, an alternate procedure is utilized.
Obtain from the clerk of the court an appropriate petition form. A case is commenced with the filing of a petition. In order for custody to be legally awarded to a parent through an order of the court, a proceeding like a divorce, paternity or guardianship case needs to be filed.
Complete the petition, using the guidelines that are provided by the clerk of the court.
File the petition with the clerk of the court.
Request from the clerk an affidavit of service by publication. Service by publication is the placement of a legal notice in a local newspaper giving notice of the case. Publication notices are used in this instance because the father's whereabouts are not known.
Complete the affidavit attesting to the fact that you do not know the location of the father.
Sign the affidavit in front of a notary public.
File the affidavit with the clerk of the court.
Obtain a sample form for the newspaper legal notice of the case.
Complete the legal notice.
Submit the legal notice to the newspaper. Most states require such a notice to be published at least three consecutive times.
Obtain from the newspaper a verification of publication.
File the verification with the clerk of the court.
Obtain a form motion for custody from the clerk of the court. Complete the motion and file it with the court clerk.
Request a hearing on the motion for custody.
Attend the hearing and request a default judgment on the motion because the father's whereabouts are unknown and you made appropriate service by publication.
- Consider retaining a family law attorney to represent you in a custody matter where you cannot find the father. The state and local bar associations maintain directories of attorneys in different practice areas. Contact information for these organizations is available from the American Bar Association.
- "Child Custody A to Z: Winning with Evidence;" Guy J. White; 2005
- "Winning Custody: A Woman's Guide to Retaining Custody of Her Children;" Deedra Hunter & Tom Monte; 2001