Once the court enters an Order of Primary Custody, the non-custodial parent may feel as though the arrangement is permanent. In fact, the exact opposite is true: any parent retains the right to file for custody of a minor child at any time, provided there exists a valid reason to do so. If you believe the custodial parent is unfit, or it is in the best interests of your child to remain with you, you may contest the current custody order and file for primary custody yourself.
Note that, in general, you cannot file a claim for nor contest child custody if you are not the biological and/or legal parent of the child. In matters where one biological parent is fit and willing to assume primary custody, the rights of the biological parent prevail.
Establish a valid reason for contesting the current custody order. While each state defines its own criteria for child custody matters, most (if not all) states permit custody claims when there is a legitimate contention of domestic violence, neglect, drug and/or alcohol abuse, criminal activity or the custodial parent is sentenced to jail.
Organize any documents, photographs or other evidence that corroborate your reason for contesting custody. Utilize emails, text messages and other correspondence to and from the custodial parent to support your case. Locate witnesses to abuse or criminal activity, if possible, and obtain written statements from each individual documenting the custodial parent's behavior. Refrain from questioning or otherwise including your child as a witness to any event; many courts strongly disapprove of this practice, and it could cause severe emotional damage to your child and her relationship with her other parent.
Read More: What Is the Difference Between Custodial Parent & Primary Physical Custody?
Contact the Family Court clerk where the original custody order was initially entered. Request a blank Motion (also called a Petition) to Modify Child Custody Order form and corresponding instructions. If the court does not offer a form, you can also search online for a sample motion, which you can use to help you draft your own.
Locate a copy of the original Order for Primary Custody, or request a new copy from the court clerk. Make a copy of the original order and retain the original for your records.
Complete or draft a Motion to Modify Custody Order, using the form or sample as your guide. Provide your personal information, your child's information and the custodial parent's information. Also, enter the original docket number and case caption as it appears on the original custody order. Provide the reason(s) why you are contesting the current arrangement, and refer to any documents you previously compiled within your explanation. Sign the bottom of the motion when finished.
Attach copies of your documents to the back of your signed motion. Make a copy of the motion and attachments, and save the copy for your personal records.
File the original motion and attachments with the Family Court clerk. There will be a nominal filing fee -- typically, between $50 and $100 -- that you must pay at the time of filing. The clerk will schedule a hearing, which you must attend, and where the court will review your motion and enter a ruling.
Make a copy of the filed motion and attachments, and serve the custodial parent with these copies. Mail the documents via certified mail with signature delivery, or utilize a courier to hand-deliver the documents on your behalf. Most states prohibit you from serving the documents yourself, so do not deliver the documents to the custodial parent in person.
Attend your hearing date. Bring with you copies of all evidentiary documents, a copy of your motion and any other documents you feel may support your case. When given the opportunity, present your reason(s) for contesting the current custody arrangement and explain why you feel your new arrangement is better for the child. Allow the custodial parent to speak interrupted when it is her turn to present.
Wait for a final decision. The judge may enter a ruling at the conclusion of the hearing, or ask you to return at a later date to hear the decision. If the judge rules in your favor and enters a new custody order, it becomes effective immediately and you may take custody as soon as physically possible. If the judge rules against you, you may be able to appeal the decision or again motion for custody in the future, depending on your state's family court procedure.
- "Family Law (5th Ed.);" William P. Statsky; 2001.
- "Legal Ethics in Child Custody and Dependency Proceedings;" William Wesley Patton; 2006.
- "Family Law: The Essentials;" William Statsky; 2003.
- "The Family Court Practice;" Hon. Anthony Cleary, et al; 2009.
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