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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.
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.
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.
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.
A: The two parents can decide upon a child custody agreement together. This method is generally preferred, as it allows the people who know the child best to establish what should be done. Often referred to as a parenting plan, such a custody arrangement can be approved by the court as part of a divorce settlement or in a separate proceeding in family court. When a judge approves a custody agreement, it becomes legally binding.
If the two parents cannot agree, custody may be litigated. Each parent will present evidence to a family court judge, who will assess a number of factors to determine the custody agreement that will be in the best interests of the child.
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.