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Child Custody | Family

When to File For Child Custody

8 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

If you are in the midst of a divorce or breakup that involves children, it’s imperative that you know when to file for child custody and what to expect from the process. 

In some cases, it may be best to file for temporary custody before your divorce is final. In others, parents may decide to await the final custody decision made by a judge. Your choice will depend on the specifics of your case and state laws. 

In general, you should begin the process of filing for child custody as soon as necessary. If you are unsure of how to file for child custody, it is recommended that you speak with a child custody lawyer before beginning the process. We can put you in touch with a local attorney to advise your best way forward

Should I File for Temporary Custody?

Contested divorces can sometimes take months to end. A judge can award temporary custody until the conclusion of the divorce case.  A temporary child custody order can help cultivate stability and normalcy for parents and children during a divorce. If there is no temporary order, the courts cannot legally enforce custody until a final ruling has been made. 

Parents involved in highly contested divorces may benefit from a temporary order of custody. It allows their temporary custodial arrangement to be recognized and enforced by the courts. Temporary orders can be beneficial if you:

  • Do not trust your co-parent to live up to their custodial rights during a divorce case
  • Can’t agree with your spouse about who the children should live with 
  • You have decided to move out of the marital home during the divorce, but still want custody of your children
  • Would like to set a precedence of being the primary caregiver for your children

Who Can File for Temporary Custody? 

Either parent can file for temporary custody. Typically, parents can file when they have an active divorce case or are in the midst of a dispute over current custodial orders. If both parents can agree to the terms of temporary custody, the court can potentially agree to the order without the need for a hearing. 

In case they are not able to agree, the court will hold a hearing to consider each parent’s arguments and rule on a temporary custody order. If you and your ex cannot agree on a temporary custody order, it is recommended that you speak with a child custody attorney as soon as possible. 

What Does Temporary Custody Decide? 

Temporary custody orders determine which parent has physical and legal custody of the children throughout a divorce or child custody case. In addition to custody issues, temporary orders can address child support as well as spousal support. 

The court uses the same formula to determine temporary custody as they do when making final orders. All decisions are made based on what’s in the child’s best interest. Thus, it is important to build and effectively present a strong case to the court for its considerations. 

After a divorce is finalized, temporary custody agreements are no longer enforceable. Final custody orders take precedence over temporary orders. In general, parents who are awarded temporary sole custody are more likely to gain permanent custody since they have already proven to the court that a living arrangement with them is in the child’s best interest. 

How Long Does it Take To File for Custody?

Procedures to file for child custody vary from state to state. Generally, child custody cases take months to conclude. The amount of time it takes to file for custody and receive a final ruling will largely depend on how complex your case is and whether or not you and your spouse can agree on a child custody plan before going to court.  

Working with a child custody lawyer can expedite the process. A lawyer helps you to efficiently navigate the process, identify your needs, limit procedural mistakes, and negotiate with your ex. 

Typically, if parents can draft and sign a parental agreement through an informal negotiation process, they only have to seek approval from a judge. That is much faster than a contested divorce and/or child custody hearing process. 

How To File for Child Custody

Each state has child custody laws and procedures. However, there are a few steps that most states have in common. Learn more about these general steps to file for child custody below. 

Visit the Clerk’s Office

Before visiting the clerk’s office, contact them. They will let you know where to get the documents you need. Some states allow you to download blank forms online, others require you to come to the clerk’s office to pick up your paperwork. 

After the forms have been completed and reviewed by your child custody attorney, they must be filed. At this time, the clerk’s office will assign a hearing date. It is important to note that the clerk’s office cannot give legal advice about your specific case, that question should be reserved for your lawyer. 

Serve Documents to Your Co-Parent

Each state has laws for how to serve child custody papers to the co-parent. In most cases, they must be served within 30 – 60 days (depending on the state). You can use a professional process serving company or your child custody lawyer to serve the paperwork. Check with your state or lawyer for specific requirements. 

Pay Attention to Deadlines

Every child custody case has deadlines. The courts allow a certain amount of time to serve paperwork, file motions, enter evidence, etc. Missing deadlines and/or making other procedural mistakes can be costly, delay important child custody decisions, or negatively impact your overall case. 

Do I Have To Go to Court To Get Child Custody?

If you are in the midst of a divorce battle, both parents assume the same parental rights until a judge rules otherwise. If you have established a temporary custodial agreement together, then you may not have to go to court for a temporary order. However, you should consult with your attorney before making any decision.

If you wish for any order of child custody (temporary or final) to be legally recognized and enforceable, you must go to court. Parents that draft and sign a parental agreement before the divorce is finalized may only need to attend a hearing to get the court’s approval. 

Do I Need a Lawyer To File for Child Custody?

Technically, no. You are not required by the law to hire a child custody lawyer, but representing yourself is rarely recommended. A family attorney can help you decide what type of custody you want, file for custody, understand how the law applies to your case, draft and review potential agreements, and represent you in court. 

Outcomes of child custody cases largely depend on which parent can convince the court that their child custody plan is in the best interest of the child. Typically, the party with the most proven and experienced legal team has the upper hand. Representing yourself pro se can lead to legal errors, misjudgments, and unfavorable rulings. 

How Much Does it Cost To File for Child Custody?

The exact cost of filing fees, process servers, etc. will vary depending on your state. In general, it can cost hundreds of dollars to file for child custody. If you are unable to afford the fees, the clerk’s office will usually have information about applying for fee waivers. 

In addition to the costs of filing for child custody, you may also have to pay for a mediator, child custody evaluator, expert witnesses, etc. You could potentially spend thousands of dollars plus the cost of a child custody lawyer. 

Family lawyers charge $3k – $5k just to get started on your case, and an additional $300 – $500 per hour on top of that. Needless to say, most people do not find it easy to budget for an attorney. 

Tips To Spend Less on Legal Fees

Other than fee waivers, there is no easy way to decrease filing fees and court costs. However, there are ways to save money on your child custody lawyer. Listed below are a few methods to decrease the amount of money you spend on attorney fees. 

  1. Draft an Agreement With Your Ex: If you can draft a parental agreement with the other parent before going to court, it can save you time, stress, and money. 
  2. Don’t Make Mistakes: Mistakes like filing the wrong paperwork, missing deadlines, not following correct procedures can prove costly. 
  3. Handle Some Things on Your Own: Taking care of a few things on your own, and hiring an unbundled attorney to take care of the rest can save you thousands of dollars in attorney fees. Learn more about unbundled legal services below. 

Save Money With an Unbundled Lawyer Today

Unbundled legal services allow you to hire an attorney to help with the parts of your child custody case that you need help with, and then you can handle the other parts of your case on your own to save money. 

If your case is a good fit to be unbundled, that can save you thousands of dollars in upfront legal fees. Fees for an unbundled attorney start as low as $500-$1500. If your case is more complex, our network of small law firms and independent unbundled attorneys also offers affordable full representation. 

Click here for a free, confidential, initial consultation today.

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