Custody & Kidnapping

There can be many pros and cons of filing for custody in court. Although I can’t speak to your specific situation, one “con” of filing for custody is that sometimes, if the other parent thinks that his/her rights are being “taken away,” s/he may suddenly want to use those rights. So, for example, a parent who rarely saw his/her child may suddenly file a counter-petition seeking custody out of anger that his/her custodial rights are being threatened.

Another “con” is that in some states and for some people, the court process can be lengthy, emotionally and physically draining, and expensive. Litigants may have to miss work to appear in court for multiple court dates, hire a lawyer to represent them, and pay court fees to file petitions or other paperwork. For people who can’t afford to hire a lawyer who may qualify for free legal services, it can be difficult to find a lawyer since the demand is greater than the supply. There can be many other “cons” that a lawyer in your state who practices custody may be able to think through with you.

Some “pros” to filing for custody are that it can provide a clear outline of who has the child at different times. For example, without a custody order, if the child lives primarily with the one parent, the other parent may still legally be able to pick up the child from school or not return the child after a visit if there is no custody order. If one parent worries about the other parent’s ability to make good decisions for the child, it’s possible that the concerned parent may try to get legal custody to ensure that s/he is the only one who can make major decisions concerning the child’s life (related to education, medical treatment, etc.) Therefore, a “pro” is that some parents feel better knowing that the other parent couldn’t just show up one day and legally take the child (even if that parent hadn’t done that in the past).

Another “pro” for having an order of sole custody is that a court order of sole custody is often needed to get a passport for a child without the other parent’s permission. Also, if there is a child support order based on joint physical custody but in fact that child is really living with one parent (and a sole physical custody order is issued), the custodial parent may be able to file to increase the child support order. One more “pro” of having a custody order is that if one parent is refusing to return the child to the other parent, it can be easier to enforce the terms of a custody order to get a child back than if there is no custody order. There can be many other “pros” that a lawyer in your state who practices custody may be able to think through with you.

Also, it is important to note that just because one parent files for custody, it doesn’t mean that s/he will get the type of custody order that s/he requested. In some instances, the other parent may end up getting more visitation than s/he had previously, the judge may give the parents joint custody or the other parent may even win custody. Also, for unmarried parents where paternity was never legally established, beginning a custody case may acknowledge the father’s paternity (which can have benefits and drawbacks).

[IF LW MENTIONS WANTING SUPERVISED VISITS] You also mentioned wanting supervised visits. Supervised visits, in the majority of cases, are only a temporary measure and then more than likely, the visits become unsupervised – however, this depends on the individual situation and the specific judge ruling over the case. Here is some more information about when someone is thinking of starting a case to ask for supervised visits specifically: [SHOULD I START A COURT CASE TO ASK FOR SUPERVISED VISITS QUESTION LINK FROM STATE CUSTODY PAGE]

Hopefully, a lawyer with experience in family law in [STATE] can give you legal advice and help you think through the pros and cons of filing for custody according to your particular situation.

[YOU CAN ADD THIS PARAGRAPH IF THE PERSON ASKS SOMETHING LIKE “WHAT IS THE FIRST STEP TO FILE FOR CUSTODY? OR WHAT DO I DO TO FILE?” OR TAKE OUT: In general, the first step to file for custody is to go to the appropriate court and fill out a petition. Then it is filed and the petitioner gets a court date to return, arranges for the other parent to be served with the papers, and both parents appear in court in front of a judge. Although a person can file for custody in court alone and represent himself/herself, it is often much better to have a lawyer who is knowledgeable in custody laws to represent someone to make sure that his/her legal rights are best represented. Also, even before filing, it is often best to get legal advice to figure out whether or not filing is the best course of action based on the circumstances and based upon what the person wants to achieve - a lawyer can tell you whether or not what you hope to achieve is reasonable based on the specifics of your situation. Here is a link for lawyers, some of which may be free: LINK And here is a link to local courthouses: LINK And information on custody in STATE, including the factors that a judge will consider when deciding custody:LINK]