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Parents who are going through a divorce or legal separation will have to go to court to address custody during the course of the divorce process. However, parents who are not and never have been married will still have to ask the court to determine a custody arrangement if they want a court order outlining who has what custody rights. Take a look at what you need to know about establishing custody rights through the court.

Is There Any Automatic Custody Rights?

Biological parents have equal rights to custody of their children in principle. In the case of married parents, the law usually recognizes that each parent has equal rights to their child. But it’s a little different for parents who have never been married to each other. While both parents do have rights, biological fathers or partners who did not give birth may first need to prove that they are a parent with equal custody rights.

For biological fathers, this means proving paternity, which can be done with a blood test. There may be other options as well – the biological mother’s acknowledgment that the father is the father of the child may be enough in some cases, or the appearance of the father’s name on the birth certificate can be used as proof of paternity.

In the case of same-sex couples who are raising children together, a parent who is not biologically related to the child may need to prove that they’ve acted as a parent, that they have a relationship with the child, and that they were always intended to be the child’s other parent in order to establish their custody rights.

What Kind of Custody Rights?

Once parental rights are established, the question of custodial rights can be addressed. Parents should keep in mind that there is more than one type of custody. The two types of custody are legal custody and physical custody. Legal custody refers to the right to make decisions for the child that affect their lives in a major way. For example, what religion to follow, whether or not to accept medical treatments, and where to enroll in school. Physical custody refers to who the child will live with.

Parents can share both types of custody and often do. Family courts recognize that children usually benefit from having both sets of parents involved in their lives, and in the present day, joint custody arrangements are more common than not. It’s also possible for parents to share one type of custody but not the other, or for one parent to have sole custody of both kinds.

Understanding the types of custody rights matters, because you’ll need to decide what type of custody you’re asking for. It’s important to consider all of the options and make the decision that you think will be best for your child. You shouldn’t file for sole physical and legal custody just because you don’t want to have to co-parent with your ex or because you don’t want to be away from the kids while they spend time with their other parent.

For instance, that deprives your children of a chance to spend time with both parents just because it would be easier for you. However, there are some good reasons for a parent to ask for sole custody, like abuse or neglect on the part of the child’s other parent, or an unsafe living situation. Consider the situation carefully and weigh your options about what to ask for before proceeding.

Where to Get Started

Many parents believe that if they want to establish their custody rights, the first thing they need to do is hire a lawyer. Lawyers can be expensive, so parents who want custody may put off their custody case until they can afford a lawyer, or give up entirely because they can’t afford a lawyer. What you may not realize is that parents can often represent themselves in a custody hearing. While some custody cases are complex enough to require an attorney’s expertise, many can be handled by an average parent.

In a typical case, the best place to start is in the clerk of court’s office. You’ll need to get the paperwork that has to be filed with the court asking for custody. How you get this paperwork depends on the state – you may be able to download and print out the forms from home, or you may need to go into the clerk’s office to get them. Once you have them, you’ll want to fill them out very carefully – mistakes can delay your case, and cost you money as well because if you end up having to refile to correct mistakes, you’ll also need to pay a second filing fee.

You’ll also want to take the time to familiarize yourself with your state’s custody laws. The better an understanding you have of the legal details, the more effective you’ll be at representing yourself. In the meantime, start documenting everything related to custody and your relationship with your child and your ex – phone calls, visits, emails, and other communications should be documented and saved in a safe place. You’ll also want to pay attention to any deadlines given to you by the court. Missing deadlines or failing to show up for court appearances or appointments mandated by the court can derail your case.

You may be asked to attend mediation with your ex in order to negotiate a joint custody arrangement. If you and your child’s other parent can come to a mutually agreeable custody arrangement, it will be easier and faster to get a court order making that arrangement legally enforceable. Even if you and your ex cannot agree, maintain your civility and do what you can to be cooperative and understanding – this will help your case later in court.

Representing yourself in a custody case can be intimidating, but you don’t have to do it completely on your own. A legal resource group like Family Law Legal Group can help you with obtaining, preparing, and storing documents, as well as with finding resources and getting your testimony ready for court, without the high price tag that comes with hiring a lawyer.


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