What are the steps to file for custody?
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial.
However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
If you decide to file in court for custody, the process usually looks similar to this:
1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives, and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
- If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
- If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
The forms you will need to fill out may be different for each county. Contact your local courthouse to find out exactly how to file in your county. See What information will I need to give when I file for custody? to learn what you will need to include in the forms when filing.
2. Prepare for the custody process
Custody cases are complicated, so you may want to consider getting a lawyer if you can. Our NV Finding a Lawyer page can help you find legal help in your area. If you can hire an attorney, you can use this list of questions as your guide when deciding who to hire. If you are representing yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section.
During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.
Keep in mind that custody court cases often take a long time. Going through this process can be emotionally and financially draining. Do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to help you navigate the process and plan for your safety.
3. Prepare for trial
There will be one or more hearings, including a trial, if you and the other parent cannot reach an agreement by yourselves or through mediation. During trial, you or your attorney will be able to present evidence and cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court. Also, you can ask the judge to include protections in your custody and visitation orders. For example, you can ask for some of the following terms:
- communication between the parents must be in writing;
- communication can only be related to the child; and
- a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.
To avoid future conflicts, you should also try to be as specific as possible about how you and the other parent will make important decisions; who will have the child on holidays, birthdays, etc.; and when and where you and the other parent will pick up and drop off the child.
4. Options if you lose the custody case
If you are unhappy with the judge’s order, there may be a couple of options that could be filed immediately - for example:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
There could also be an option that you may take in the future, but not immediately after the judge gives the order. A motion or petition to change (modify) the order could be filed later on if a “substantial change of circumstances” happens. A few examples of substantial changes in circumstances could be if the other parent gets sent to jail or gets charged with child abuse or neglect; if you move or the other parent moves to another state; or if your child’s needs significantly change.
To find out more about how the process works in your area, please contact a lawyer. Please visit our NV Finding a Lawyer page to find legal help in your area. You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation, related legal concepts that a judge will consider, child support, and moving out of state with your child.