Child Custody Basics: How Do I Get Custody of My Children?

Every state has its own set of rules regarding family law. Divorce and child custody matters are governed by a state’s family code. Even though custody begins with the filing of a petition, developing factors regarding your parenting abilities will eventually determine who gets custody of a child during a divorce.

Custody and the Petition for Divorce

If you have children and are applying for a divorce, most states will require your divorce to be combined with a child custody proceeding called a suit affecting parent-child relationship. The title of the document will still read “Petition for Divorce,” but your petition should include a section which lists the children that are affected by the marriage and your request for custody of the children. This is a somewhat critical “no-brainer” in that you can’t get what you don’t ask for. If you are served with a suit for divorce and your spouse is requesting custody of the children, you should file an answer and counter-petition also requesting custody. A general denial does not equal a request for custody.

Custody and Parenting Classes

After the petition is filed, some states require parents to attend parenting classes and mediation designed for custody disputes. Even if the parenting class is not mandated by state law, it may still be required by the judge overseeing your case. Some jurisdictions have now approved online parenting classes. Most are not lengthy or cumbersome, but do not neglect the basic requirements of your jurisdiction. You want to be able to show the judge that you have done everything necessary to improve your parenting abilities so that you can provide the best environment for your child.

Standards for Determining Custody

After all of the preliminary matters have been resolved, most courts encourage parents to come to agreements on child custody matters. If you cannot reach an agreement with your spouse regarding custody, you will have to request a contested final hearing on the issue of child custody. Depending on your jurisdiction, the final hearing can either be before a judge or a jury. A family law attorney in your jurisdiction can advise you of which is the best option in your area. There is not a bright line test for the courts to use when deciding who should get custody of a child. The general standard is called “the best interests of the child.” Your goal, if you are seeking full or partial custody, should be to develop factors that demonstrate to the court that awarding custody to you is in the best interests of your child(ren).

Factors can include, but are by no means limited to, financial resources, parenting abilities and family support. “Financial resources” generally refer to the amount of money that you make or have available to support your child(ren). The more financially sound your situation, the better. Be careful, however, not to portray yourself as a work-a-holic. The court wants you to have the means to support your child, but to also be around to raise them. If your plan is to leave them in daycare morning, noon and most nights, it may influence the court to award your child(ren) to your spouse if it appears that he or she will have more time for child rearing… and simply order you to pay child support. 

Showing Your Involvement

Completing the required parenting class is a good first start, but there's more that you can do to demonstrate your fitness as a parent. Show the court the types of activities that you will make available and do with your child. Research schools and educational programs in your area. For example, obtain enrollment papers and brochures for a pre-K program that your child is eligible for. If your child likes sports, consider enrollment in a soccer league. Do not go on a frenzy of over-scheduling your child, but rather show the court how you intend to develop your child’s mental and physical abilities. 

Family Support as a Custody Factor

When many factors are equal, family support can often tip the scales between two qualified parents seeking child custody. Family support can include any collateral members like grand-parents, aunts, uncles, and cousins. Show the court how your child is going to be raised by a loving family. This is especially true if your work load can include extended time away from your child. The court will feel more comfortable that you have options other than daycare if you have to be away because of work.

 The Other Parent

If you feel that your spouse has serious problems and the court should take these issues into consideration when awarding custody, you need to be prepared to demonstrate and document your concerns. Gather reports of prior domestic violence, drug use, neglect and criminal arrests. Some states apply what is called a domestic violence presumption. This presumption means that if your spouse has engaged in acts of domestic violence, their anger management issues are presumed to be harmful for your child. 

As mentioned, courts do not have a bright line test for deciding which parent should have custody. However, the more proactive you can be in filing for custody, completing any special requirements by the court, and developing your parenting plan will increase your chances of obtaining custody of your child(ren) during a divorce. Because family codes vary by state, you should review any special circumstances with a family law attorney in your state. They can advise you on how to tailor the factors listed above to fit the preferences in your jurisdiction.