The Proper Steps in a Custody Battle

By Victoria McGrath

Mother with baby

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Custody battles erupt over legal custody, physical custody and child support of a child. You can file a petition for child custody and support as part of your divorce case or start a child custody case without a divorce. Married parents generally file for child custody and support as part of a divorce case. Parents can reach a custody agreement on their own or argue over custody before the court.

Petition for Child Custody

When you initiate the divorce, and child custody case, you are the petitioner and the other parent is the respondent. You complete the petition, summons and other legal documents, file the papers with the court and secure a court date. You arrange for service of process, to serve a copy of the documents on the other parent, and provide proof of service to the court before your scheduled court date.

Response to Petition for Child Custody

When your child's other parent receives the petition for child custody and support, with the summons to appear in court and the court date, the package of legal documents should include a response form. The other parent completes the response form, files it with the court and provides you with a copy of the response. The respondent provides proof of service to the court prior to the scheduled court date.

Child Custody Hearing

Issues addressed at the initial hearing depend on whether the respondent agrees with the petition or disagrees with the petition. If the married parents agree on the divorce and child custody, the parents can submit a marital settlement agreement, that addresses child custody and support, to the court for approval. Otherwise, the judge can order the parents to attend mediation to resolve child custody disputes, before the court issues a custody order.

Child Custody and Visitation Plan

Parents can prepare a child custody agreement together to resolve legal custody and physical custody over the child. Under legal custody, you decide how you will make major decisions together regarding your child's education, health and welfare. Under physical custody, you address visitation schedules, child care and other logistics. Custody arrangements can include joint legal custody and joint physical custody, or a combination of joint custody and sole custody, such as joint legal custody with sole physical custody to one parent and visitation rights to the other parent.

Best Interests of the Child

Before issuing a court order for child custody, the judge considers the best interests of the child and the reasonableness of any agreement. Each state requires a judge to consider specific factors in determining the best interests of a child, such as the emotional ties to each parent, siblings and extended family. The judge also considers if each parent can provide a safe home environment and adequate supervision for the child. For instance, a parent with a history of substance abuse or mental illness may not be able to supervise the child properly.

Court-Ordered Mediation

Many states impose mandatory mediation or parenting classes in custody cases. Requirements vary by state. For example, Maryland requires each party to have a lawyer during court-ordered mediation. Under court-ordered mediation, parents meet with a family mediator to work out the details of child custody. The mediator can help parents draft an agreement. If mediation fails, the judge decides any unresolved custody matters before she issues a custody order.

Child Custody Arguments

If you cannot reach an agreement to share custody, you can argue for sole legal custody, sole physical custody or both. The best arguments for the judge to award sole custody to one parent include past abuse, neglect or abandonment of the child by the other parent. Parents fighting for sole custody can raise concerns over domestic violence, chronic substance abuse, violent crimes and incarceration. Serious allegations should be supported by documented evidence, such as police reports, criminal records, medical records or social service investigations.