What are the steps for filing for custody?
The steps of a custody case will depend on the particulars of your case. To find out what the process will be like for you, please talk to a lawyer in your area. Some general information is below.
Step 1: File the custody complaint (petition) in court.
In order to start a custody case, you need to file a custody complaint with the court in the county where the parent or the child resides or in the county where the child is physically present.1 There are other forms that need to be filed with the complaint so please verify with the clerk of courts that you have all the forms you need. Also, there is a filing fee to start the custody case. If you cannot afford the fee, you can fill out a form titled “Petition to Sue as an Indigent” and request that the court waive the filing fee for you. These forms should be available at the courthouse.
Step 2: Get the custody papers served on the abuser.
After you have filed the paperwork and paid the fee to start a custody case (or received a fee waiver), you will have to make sure that the defendant is served with copies of the documents you have filed. Serving the defendant means giving the defendant copies of the documents you have filed. To do this, the defendant can be served personally by the sheriff or other law enforcement officer, a private process server, or anyone who is not a party and is at least 21 years of age. You cannot serve the papers yourself. If a defendant is represented by an attorney, the defendant may also consent to service on his/her attorney in what is known as an “acceptance of service.” In this case, the papers may be served either on the defendant or on his/her attorney, on the defendant’s behalf. If the defendant lives out of state or if you cannot find the defendant, you should consult with an attorney to discuss other ways in which you can have the defendant served with the custody papers.
Step 3: Parenting classes and mediation
Once you start a custody case, many counties in North Carolina require that you and the defendant attend a parenting education class before going forward with your case. You and the other parent will take the parenting classes separately. Each county handles the parenting classes differently. To find out about parenting education in your county, consult with the court clerk at the courthouse.
Additionally, counties in North Carolina that offer mediation require that before seeing a judge you try to resolve your case by mediation.2 Mediation is an opportunity to resolve a case without going to court. In counties where mediation is required, somebody from the court will sit down with you and the defendant to try to work out an agreement relating to custody and visitation. If your mediation is successful, your custody and mediation agreement will be written out and approved by a judge, thus becoming a court order. However, if you are a domestic violence victim, mediation may not be required. The court can waive mediation if you can show that domestic violence has occurred between you and the other parent.3 If you have an attorney, you can choose to have your attorney help you with the mediation process. For more information, please see When can I be excused from mediation. What if I am a victim of domestic violence?
Step 4: Appear in front of the judge.
If the mediation is not successful or if mediation is not required due to domestic violence, your custody case will then go to trial before a judge. At trial, both you and the other parent have the right to present evidence (such as your own testimony, witnesses’ testimony, relevant documents such as police reports or medical records that could prove domestic violence, etc.). The judge will consider the evidence submitted by you and the other parent and make a decision about who should have custody, what type of custody that person should have, and what type of visitation the non-custodial parent should have.4 Having a lawyer represent you at trial is generally best. Go to our NC Finding a Lawyer page for links to free and paid lawyers.
1 NCGS § 1-82
2 NCGS § 50-13(b)
3 NCGS § 50-13.1(c)
4 NCGS § 50-13.1(b)