Having custody means making important decisions for a child, and spending time with them. The term "custody" is no longer used in the law. The new term is "parental responsibilities." The term "custody" is used here because it is still a common term.
The steps for getting custody for a child are different depending on the county you are in and the facts of your case. You should ask the clerk for the rules for your county. You also need to make sure you know all the deadlines set by the court, and that you go to every court date.
Costs of a court case
It costs time and money to file a case in court. Court cases may take several months and even a year or years to finish. Court cases often include:
- Fees to file your case, if you cannot get them waived
- Lawyer fees or your own time spent figuring out the court process and doing the paperwork
- Time spent in court, which may be time you have to take off work
Other options besides going to court
Other options besides going to court cost less and are faster.
- Settle: Agree with the other party on your own. You have more control of the outcome because a judge or jury is not making the final decision. Learn more about parenting plans.
- Mediation: Reach an agreement with the other party with the help of a neutral third party. The mediator does not decide what happens. The mediator helps you reach an agreement that is documented in a contract that both parties must follow.
1. Fill out parental responsibilities forms
To ask the court for custody, you must file a petition for one of the following:
Fill out and sign or e-sign your forms. Make four copies of each form. Your circuit court may have pre-printed forms you can use.
Your Petition for allocation of parental responsibility (custody) must contain the following information:
- Your name;
- Other parent's name;
- Child's name;
- Child's birthdate;
- How parentage was established (or ask the court to determine parentage); and
- A statement that you are asking the court to give you custody, including parenting time and decision-making power.
You must also provide an affidavit with information about where the child has lived for the past five years and any other past or current custody cases involving the child.
2. File forms with the court
If you are filing a dissolution case, submit your petition in the county where the other parent lives too. If there is already a case, such as dissolution or a parentage case, involving the child. You will usually have to ask for custody in that case. If the child does not live in the county where you file your petition. The court may transfer the case to the county where the child lives.
When you file your petition, you will need to schedule a CMC court date.
When you file your forms with the clerk they become part of the case. The clerk will stamp your forms. This stamp is important because it's proof that you filed the form with the court.
- E-filing: The documents you want to file with the court have to be uploaded into the system. You will need to create an account. See E-filing Basics for details.
- Paper filing: If you are paper filing bring the forms to the clerk at the courthouse in the county where you are filing. Bring all your copies and the originals with you when you file. Ask the clerk to stamp all your forms. They will keep the original. Keep at least one copy for your records. See courthouse locations.
There is a fee to file most forms. The cost depends on the type of case you have and the county where you are filing. Contact your local circuit clerk's office for information on the fees.
If you do not have money to pay court fees, use the Application for Waiver of Court Fees program.
3. Tell the other parent about your case
After filing, you must let the other parent know that you are asking for custody. To do this, you must send the petition to the other parent along with a summons. You must attach your petition to the summons. Here are the rules to know about a summons:
- There is a usually a cost to having a summons served. The cost depends on how the summons is served to the other party; and
- If you do not give the other party a summons telling them about your lawsuit within the required time, the lawsuit may be dismissed because there was not proper notice of the lawsuit.
There are two types of summons you can use:
- A 30-day summons is used if you are asking for custody as part of a divorce case. The other parent must answer within 30 days; and
- A summons requiring an appearance on a specific date is used when parentage needs to be proved and must state whether you want child support. The other parent must answer this type of summons by going to court or by filing an appearance and answer by a specific deadline. You must ask the court to give you a return date when the other parent must come to court.
Prepare the correct summons and give it to the sheriff to provide to the other parent.
Learn more about how to serve a summons.
4. Wait for the other parent’s answer/ask for a default judgment if the parent does not answer the summons
You can ask the court to enter a default judgment if:
- More than 30 days have passed from serving a 30-day summons. The summons begins on day 1 and ends on day 31 or on the date of the return summons; and
- The other parent has not filed an answer or fails to show up to file an answer by the deadline on a return date summons.
You do this by filing a motion.
6. Go to your Case Management Conference
This happens within 90 days of the day you file your petition. At the CMC, you and the other parent will discuss the case with the judge.
7. Go to a court ordered parenting class
Within 60 days of the CMC, you and the other parent will be ordered to take a parenting class. The parenting class is at least 4 hours long. You may be able to take it online. Contact the clerk to learn more. Be sure to save the certificate of completion after you take the class.
The court might also order that you and the other parent go to mediation. A mediator is a trained person who will meet with you and the other parent will listen to both sides and will try to help you reach an agreement.
Usually, the parents split the cost of mediation. If you cannot afford to pay, you can ask the court to order the other parent to pay the entire cost of mediation or to order the county to pay. Some counties have a free mediation program for parents who cannot afford mediation.
If you and the other parent reach an agreement in mediation, you will prepare an agreed parenting plan to give to the judge at your next court date.
If you do not reach agreement in mediation, you will report this to the judge, and the judge will probably set a date for trial. At the trial, both sides will give their evidence, and then the judge will decide how to give custody based on the best interests of the child. The judge will decide how the parents will make decisions for the child, and when the child will live with each parent. If child support has not already been set, the court will probably also order the parent with less parenting time to pay child support.
8. Set trial date and go to court
If you and the other parent cannot agree about custody after the parenting class or mediation, the judge will set a trial or hearing date. You will need to let the other parent know the hearing date by mail if he or she is not in court when the date is set. At the hearing, the judge will decide who gets custody.
The court gives custody based on the best interests of the child. The court will also look at the parenting plans and many different things when deciding best interests. For both decision-making authority and parenting time, the court will consider the following:
- What the parents want
- What the child wants, if the child is old enough and mature enough
- The child's relationship with the parents, siblings, or other people
- How the child adjusts at home, school, and in the community
- The mental and physical health of all parties
- Any past and ongoing acts of violence by a parent against the other parent or a child
- Whether one of the parents is a sex offender
- For parents who are in the military, the terms of a parent’s military family care plan
- Whether the parent is willing to work to make sure the other parent plays a part in the child's life
Note that, even if the other parent does something you think is bad, it doesn't impact custody unless it affects their relationship with the child.
In giving custody, the court also looks at who has made decisions for the child in the past, as well as the ability of the parents to cooperate in making decisions.
When deciding how much parenting to give, the court will also look at how much time each parent has spent taking care of the child (such as feeding the child, helping with homework, taking the child to doctor appointments, etc.).
At the trial, both parents will show evidence about who has been making decisions and taking care of the child. After the hearing, the judge will make the final decision. Courts don't like to move children from a home they are used to or from the care of the parent who has provided most of the of care, especially if the child appears to be fine. Judges also do not like to split up siblings. A parent's drug or alcohol addiction can also be an important factor.
Finally, courts feel that children do best if both parents are involved in the child's life as much as possible.
Modifying a custody order
After the court makes its final decision, the order can't be adjusted for two years, unless both parents agree to the change. This only applies to custody decisions. You can still ask the court to change parenting time if circumstances change for you or the other parent.
9. Go to counseling or further classes, if it is ordered
As of January 1, 2017, a judge can also order more classes or counseling than the parenting class mentioned above. This includes:
- Individual counseling for the child,
- Family counseling for one or more of the parents and the child, or
- Parental education for one or more of the parents.
The judge can only do this if one of the following things is true:
- Both parents agree to it;
- The child's physical health is endangered;
- The child's emotional development is impaired;
- One or both of the parents has abused their parenting time; or
- One or both parents have abused the custody order.
Updated: January 2018