Divorces, annulments, or legal separations, which are cases you will file if you want to end your marriage with the other parent; Domestic violence restraining orders, which you will file if you have been the victim of domestic violence; Petitions for custody and support of minor children, which you will file if you and the other parent do not want to get a divorce, but you want to set up a custody arrangement for other reasons; or Child support agency cases, which occur when you are the subject of a local child support enforcement case. [1] X Research source
Parentage cases, which are filed when parents are not married but have children together; Domestic violence restraining orders; Petitions for custody and support of minor children, which can also be filed when you and the other parent were never married at all; and Child support agency cases. [2] X Research source
Because you are petitioning the court for full custody, you need to make sure you request both legal and physical custody. [6] X Research source In California, this is as easy as writing your name under the headings on the form for “legal custody” and “physical custody. “[7] X Research source
In addition to serving the other party with the documents you filed with the court, you will also serve the other party with a blank response form and a blank Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act. [17] X Research source These documents will be used by the other party in order to respond to your filed lawsuit.
If the other parent declines to file an answer, you could file for a default judgment. A default judgment cannot resolve all issues, however. For example, the court can modify visitation if the child is in your state but the other parent lives out of state. But the court probably cannot modify an order for child support from the out-of-state parent.
In California, in order to validate a custody agreement, you must first fill out a Stipulation and Order for Custody. Once you fill out this form, you will obtain the judge’s signature on your stipulation and you will file it with the clerk of courts. [19] X Research source
Courts will look at different factors, depending on the state. Michigan, for example, considers: the love and affection existing between the parties and the child; the ability and willingness of the parties to provide food, shelter, clothing, and medical care; moral fitness of the parent; stability of the custodial environment; and mental and physical health of the parties, among other factors. [21] X Research source Among a variety of factors, Kentucky considers the wishes of the child; the child’s adjustment to home, school, and community; the mental and physical health of all individuals involved; as well as the interaction and interrelationship of the child to each parent and to siblings. [22] X Research source To find the specific factors for your state, search online for “best interests of the child” and then your state. Understanding what you must prove at court will clarify the kinds of evidence you should seek during the discovery process. For example, you will need to prove your physical health, your willingness to provide food and medical care, as well as a stable home environment. You will also need to fend off attacks to these same characteristics.
If you take part in informal discovery, you may conduct interviews with witnesses, collect documents, and take photographs. [25] X Research source These are all considered informal discovery processes because they are things you can do on your own while working with cooperative people. [26] X Research source If you need to use formal discovery, you will utilize various tools to require uncooperative parties to give you information you need. [27] X Research source These tools include: interrogatories, which are written questions the other party must answer; depositions, which are in-person interviews with an opposing party or witness; requests for documents, which asks the other party to produce documents you want to see; and requests for admissions, which will involve you asking another party whether certain statements are true. [28] X Research source
You will likely have to take part in multiple interviews, some being conducted with the other party and others being conducted alone. [29] X Research source The evaluator will ask questions to try and determine if giving you full custody will be in the best interests of the child. For example, you may be asked, “How do you show love for the child?”[30] X Research source Also, you may be asked to provide the evaluator with community and school records. The evaluator may want school records, such as disciplinary violations, or a record of the community activities the child participates in. You will need to sign a release for the evaluator to access them. [31] X Research source The evaluator may also want a “home record. ” This consists of information about the child’s behavior (outgoing or withdrawn), as well discipline problems and relationships with siblings. [32] X Research source
Do not engage in argument. Emotions can run high in a custody hearing, but there is nothing to argue about during the opening statement because no evidence has been admitted into court yet.
Do not ask leading questions. [33] X Research source A leading question states a fact and then asks the witness to agree. For example, “You never spank your child, do you?” is a leading question. Instead, the lawyer should ask a series of questions such as “How often does your son misbehave?” “Do you punish him?” “How do you punish him?” Then the attorney can ask, “Have you ever spanked your son?” Ask witnesses to identify any documents you want introduced into evidence. You must first elicit testimony that a document is what you claim it is before it can be admitted into evidence.
You can impeach a witness with a prior inconsistent statement. If a witness ever praised you as a parent, then that statement can be introduced if the witness now claims on the stand that you are a bad parent. If someone testifies that you and your child fight, then you can minimize the damage by highlighting how infrequently the witness sees you with your child. Always try to remain calm. If you feel anger overwhelming you, close your eyes for five seconds and breathe deeply.
Counter bad facts as best as you can. If you don’t have a clean criminal record, then concede that fact before highlighting the evidence that shows you have lived responsibly for the past several years.
