How to File for Custody of a Child

Whether you're seeking custody of a child during a divorce, were never married to the other parent or aren't the child's parent, filing for custody of a child requires the filing of documents with the appropriate court. The necessary steps in the process vary according to your state laws, the nature of your relationship to the child, whether the custody is disputed and other factors.

Types of Custody

You must first decide which type of legal and physical custody you want to pursue. You have the following options for custody arrangements:

  • Legal custody: This grants the authority to make decisions about the child's health, education, religion and similar important aspects of the child's life, and can be either sole legal custody, where one parent has all authority, or joint legal custody, where decision-making about the child's upbringing is shared.
  • Physical custody: This concerns where the child lives. When a parent has sole physical custody, the child lives primarily with that parent. In joint physical custody, the child lives part of the week, month or year at one residence and the remainder of the time at another. An uncommon custodial arrangement is known as bird's nest custody, where the child lives at one residence, with the parents taking turns living there as well.

One parent can have sole physical custody but the parents share joint legal custody, or vice versa.

Typical Process

If the parents are divorcing, then filing for custody is part of that process. In non-divorce cases, you must file for custody with the appropriate court, usually a family law court. The court must be in your child's home state, which is where he or she has lived for at least six months. The specific documents for filing vary by state. For example, in California, the Petition for Custody and Support of Minor Children is required. File this and related documents with the court clerk and then have these documents served on the other parent, if there is one. You must pay any filing fees, or submit a request for a waiver of those fees if you cannot afford to pay.

Ideally, parents are able to reach an agreement outside of the courtroom. If not, then a judge will decide who gets custody of your children. This decision will be made after a child custody hearing where each parent, the child or children in question (if deemed mature enough) and witnesses familiar with the family testify.

Factors Considered in Deciding Custody

Judges decide what is in the best interest of the child -- how those interests are evaluated and what factors are prioritized vary by state. Most states' family law judges consider:

  • the parents' wishes
  • their ability to provide for the child
  • current living arrangements
  • the child's relationship to each parent
  • the presence of domestic violence, if any

The majority of states allow judges to consider the child's preference if the child is 14 years or older. Some states require judges to honor the child's preference as long as the chosen parent is considered fit.

After Custody Is Granted

After the hearing, the judge will sign an order detailing the custody arrangement. This will be filed with the court clerk, with copies provided to both parties. Once the judge issues the final order for custody, the arrangement can only be modified as a result of significant changes in circumstances and a change in custody would be in the child's best interests. The parents can make an agreement on their own and then submit the proposed agreement to the court for the judge's review and signature. If the parents do not agree, then one can file a request to change the custody order with the court.

Use of an Attorney

If your case is complex -- such as an interstate custody arrangement, disputed by the other parent -- or you are not comfortable representing yourself, you should consider hiring a family law attorney. The cost of an attorney varies according to region, the complexity of the case and the attorney's typical rates -- expect the price to range from $3,000 to $6,000 at minimum.