Getting Your First Child Custody Order
The first child custody order in many paternity and divorce suits is actually a temporary order. Despite being a temporary order, this preliminary custody order can have an impact on future custody decisions. Stability and permanency are two factors that courts will often review in deciding what is in the best interests of a child. If a parent obtains custody through temporary orders and demonstrates the ability to adequately care for a child, courts are generally reluctant to remove the child from the home of that parent. The process of obtaining this first order involves filing a petition and requesting a hearing. At the hearing, the court will receive evidence from both sides and make a decision in the form of temporary orders.
The first step is to file a petition. The title of your petition will depend on your marital relationship to the other parent. If you are married, normally a custody suit is combined with the divorce. If you are not married, then you will file a paternity suit or a suit affecting parent-child relationship ("SAPCR"). Even though the titles are different, the language required in either is very similar. You need to allege that you are the parent of the child affected and that you are seeking custody, or managing conservatorship, of your child. You should also include whether the other parent should be awarded visitations, or possessory conservatorship, or whether their visitations should be restricted because of their inability to be a good parent. You must also make a specific request for temporary orders. A hearing on temporary orders will not be granted just because you filed the suit.
Once you include a request for temporary orders in your child custody petition, you will need to request a date for your request to be heard. Most courts have court coordinators that will help you schedule a date for your hearing. If there is a matter which constitutes an emergency situation, some states will permit hearings to be held within two weeks of the filing of your request for child custody orders. An emergency situation could include instances of domestic violence directed towards you or your child. If there is not an emergency situation, a hearing will be scheduled 30-60 days from your request.
After a hearing date is set, you will need to send notice to the other parent to appear. Failure to serve the other parent with notice of your request for a child custody order will result in your request being postponed. Certified mail and process servers are two methods used to get notice to the other parent.
On the day of the hearing, you will need to present your request to the court. Be prepared to answer questions regarding how you will support and care for your child during the pendency of the suit. See the section on “How to develop a parenting plan” for ideas on how to frame your request and evidence.
If you are successful in presenting your request and supporting documentation, the court will issue temporary custody orders and order the other parent to pay child support. If there is a special situation that affects your ability to comply with the orders of the court, make sure that your attorney is aware of the situation so he or she can request alternatives to the court. For example, if standard visitation in your jurisdiction includes a visit every Thursday evening, but Thursdays are the one day a week that you are required to work late, your attorney can request Tuesday evening visits instead. A workable set of orders will prevent issues down the road.
Successfully obtaining temporary orders is just the beginning of a child custody dispute. Take care to comply with any orders of the court. Repeated non-compliance of the court’s order can be viewed as gaming which puts the child in the middle of parental bickering. Courts tend to frown on parents who place children in the middle of adult fighting. In a worst case scenario, you could end up losing custody for non-compliance with the temporary child custody orders. If at any time the orders become unworkable, seek a modification of the orders to prevent any future misunderstandings.