How to file a petition for child custody

When you come to court about custody or visitation for your child, you may have a choice: whether to file a custody petition and have your case heard in front of a Judge or court attorney-referee or to have your case referred to mediation.

If you already have a custody or visitation order for your child from Family Court, you can use the Custody/Visitation Modification DIY Program to ask the court to change the order or the Custody/Visitation Enforcement DIY Program to ask the court to enforce it if it is not being followed.

Who Can File for Custody

Anyone who has an important role in a child’s life may ask the court for custody. You don’t have to be the child’s parent. When a Judge decides custody between a parent and someone who is not a parent, he or she will consider if there are “extraordinary circumstances” first. If there are extraordinary circumstances, then the Judge will consider what is in the best interest of the child.

The person who starts the case is called the “Petitioner.” The case is against the “Respondent”.

Where to File for Custody

Custody cases are usually started in Family Court. The petition should be filed in the county where the child lives. Sometimes, if the parents are married and getting a divorce, one of the parents file for custody as part of the divorce in Supreme Court. The custody order is part of the Divorce Judgment.

How Much Does It Cost

It is free to file a custody petition in Family Court. If you get a lawyer, it is your responsibility to pay for the lawyer’s services.

After Filing for Custody

After filing the custody petition, the petition and summons must “served” (delivered) on the other side in person. If a non-parent is filing for custody, the petition must be served to both parents. The summons will tell both sides when and where to come to Family Court for the custody hearing.

Related Information:

  • Address Confidentiality in Family Court Cases
  • Custody & Visitation Hearing
  • Extraordinary Circumstances in Custody/Visitation

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Jurisdiction: Pursuant to RSA 458-A:3, one of the following must apply to file a parenting action or modification in New Hampshire:

I. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree only when:

(a) This state (1) is the home state of the child at the time of commencement of the custody proceeding; or (2) has been the child’s home state within 6 months before commencement of such proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(b) It is in the best interest of the child that a court of this state assume jurisdiction because (1) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (2) there is within the jurisdiction of the court substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

(c) The child is physically present in this state and (1) the child has been abandoned or (2) it is necessary in an emergency to protect the child; or

(d) (1) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subparagraph (a), (b), or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (2) it is in the best interest of the child that this court assume jurisdiction.

II. Except under subparagraphs I(c) and (d), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

III. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

There is a filing fee for a parenting petition.

To start your parenting action:

If both parents agree to file the parenting action, even if you don’t agree on a parenting plan or child support, you may wish to file a Joint Parenting Petition, together with a Personal Data Sheet. Using a Joint Petition to begin the parenting action avoids the cost of formal service of legal papers.

Otherwise, if you want to file as an individual, you will file a Parenting Petition, together with a Personal Data Sheet. The other parent will need to be notified about this parenting action. That notification will happen either by the other parent picking up the paperwork at the court, or by you sending the papers by certified mail or through the sheriff.

After a joint petition is filed, or after service of an individual petition, you will be scheduled for a First Appearance session. At this session, a judge or master will explain the court process and highlight important things to think about involving your children. You will hear about the Child Impact Seminar, parenting plans, mediation, and guardians ad litem, and child support. A date will be selected for the next step in your parenting action, so please bring your calendar for scheduling purposes. See First Appearance/Mediation for more information.

To complete your parenting action, you will need to file:

· Certificate of completion of the Child Impact Seminar

If you need an order of the court before completing your parenting action, you may request a temporary hearing on the parenting petition. You will need to file a Decree on Parenting Petition prior to the temporary hearing. Generally, a Temporary Hearing will not be scheduled until after First Appearance and mediation.

How to Petition the Court for Custody

There are two aspects to custody over a minor child: legal custody and physical custody. Legal custody is the legal authority to make decisions for the child such as where they will attend school, what religion they will be raised in, and when to obtain medical care. Physical custody is who the child lives with.

How to file a petition for child custody

If you and your child’s parent cannot reach an agreement on physical and legal custody, you need to petition, or ask, the court to grant the custody arrangement you want. There are generally three phases to petitioning for custody: the preparation phase, the filing phase, and the court phase. The exact requirements and process for each stage vary by state and facts of the case.

1. Decide what you want.

Start by taking some time to decide in detail what type of custody arrangement you want. Do you want sole physical custody? Are there decisions you would like to make jointly with your child’s other parent? Where will your child attend school? These and other details need to be sorted out during the custody process.

Discuss your desires with your child’s other parent. See if you can reach an agreement on any of the issues. The more you can agree on, the quicker and cheaper the court process will be.

2. Prepare to file.

Prepare to request custody by learning about the child custody laws in your state and locating the required forms. You can research this information by looking online, contacting the clerk for your local court, or going to a public law library. Or, you can hire a family law attorney who will explain the law and guide you through the process.

Next, start gathering the information you will need to complete the forms to request custody. This information typically includes basic demographic information about your child, your child’s other parent, and you; the type of custody you are requesting; and information on related proceedings like a divorce or paternity action. If you have hired an attorney, the attorney will give you a list of the information they need from you to complete the appropriate forms on your behalf.

3. File your request and provide notice.

Complete the document requesting your preferred custody arrangement and file it with the court. If you are in the process of a divorce from your child’s other parent, this request will be part of your divorce filings. If there are no divorce proceedings, you will need to start a new court case by filing a petition for custody and paying the applicable filing fee.

In all cases, you will need to provide your spouse with notice of your custody request. The proper method of providing notice depends on whether the custody request is part of divorce proceedings or not and whether your child’s other parent will agree to waive formal notice.

4. Present your case to the court.

You will be assigned a court date where you will have the opportunity to present evidence supporting your request for custody. The judge will ask you questions and may request additional information. The judge could also order formal evaluations such as a psychiatrist evaluation of your child or home visit.

There may be more than one court date required before the judge issues a decision. In a complex case, the judge can issue a temporary order on what the custody arrangement will be until a final decision is reached.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

Forms are available in Microsoft Word and PDF formats.

Paternity, Custody, Visitation and Child Support

Use these steps to file a new paternity, custody, visitation, or child support case.

Step 1 — Starting your case

  • Instructions — Filing for Paternity, Custody, Visitation and Support PDF
  • Instructions — Completing a Petition for Paternity, Custody, Visitation and Support PDF
  • Instructions — FAQ about Child Support in Idaho PDF
  • 1. Family Law Case Information Sheet RTFPDF
  • 2. Petition for Paternity, Custody, Visitation and Support RTFPDF
  • 3. Summons with Orders RTFPDF
  • 4. Affidavit Verifying Income RTFPDF
  • 5. Shared or Split Custody Child Support Worksheet or RTFPDF
  • 6. Standard Custody Child Support Worksheet RTFPDF
  • 7. Parenting Plan RTFPDF

Step 2 — Serve (Deliver the documents)

  • 1. Acknowledgement of Service by Respondent or RTFPDF
  • 2. Affidavit of Service with Orders RTFPDF

Service by Publication (if you cannot find the other parent)
This is the packet you would use to request permission from the court to Serve by Publication in a Family Law case.

  • Instructions — Service by Publication PDF
  • 1. Motion and Affidavit for Service by Publication RTFPDF
  • 2. Order for Service RTFPDF
  • 3. Summons by Publication RTFPDF
  • 4. Affidavit of mailing Per Order for Publication RTFPDF

Step 3 — Responding to a Case

Step A — File a Response to a Petition
  • Instructions — Completing Family Response (With Children) PDF
  • 1. Family Case Response (With Children) RTFPDF
  • 2. Family Law Case Information Sheet RTFPDF

See Also Mandatory Disclosure Requirements Below

Step B — Complete Mandatory Disclosures
  • Instructions — Mandatory Child Support Disclosures PDF
  • 1. Petitioner’s/Respondent’s Mandatory Child Support Disclosures RTFPDF
  • 2. Certificate of Service RTFPDF

Only the Certificate of Service is filed with the court. Do Not File the Disclosures with the court.

Step 4 — Finalizing your case

Finalizing by Default
  • Instructions — Finalizing a Custody or Modification Case PDF
  • Instructions — Completing Decree of Paternity, Custody, Visitation and Support PDF
  • Instructions — Guidelines for Courtroom Behavior PDF
  • 1. Motion and Affidavit for Default RTFPDF
  • 2. Default RTFPDF
  • 3. Decree of Paternity, Custody, Visitation and Support RTFPDF
  • 4. Child Support Order Transmittal Form RTFPDF
Finalizing by Stipulation

Stipulation means both parties are in agreement and will sign.

  • Instructions — Finalizing a Custody or Modification Case PDF
  • Instructions — Completing Decree of Paternity, Custody, Visitation and Support PDF
  • 1. Stipulation for Entry of Order, Judgment, or Decree RTFPDF
  • 2. Decree of Paternity, Custody, Visitation and Support RTFPDF
  • 3. Child Support Transmittal Form RTFPDF
Genetic Testing Non-H&W Case

Request genetic tests when paternity is at issue in a case where the ID Department of Health & Welfare is not a party to a case.

  • Instructions — Filing a Motion for Genetic Tests PDF
  • 1. Motion for Genetic Tests RTFPDF
  • 2. Notice of Hearing on Motion for Genetic Tests RTFPDF
  • 3. Order for Genetic Tests RTFPDF