How do I initiate a custody case? Whether you are married to your child*s other parent or not married, the procedure to establishing custody of a child is basically the same. Filing for custody starts with either a Petition or Complaint to Establish Custody of Minor Child(ren) or a Petition/Complaint for Divorce. A custody or divorce complaint will state that the parties have a minor child (or children), that the person filing the complaint (Plaintiff) is fit and proper to be awarded custody of the children and that the person receiving the complaint (Defendant) is capable of paying child support and should be ordered to contribute to expenses. Winning the race to the court house (being the first to file) does not mean that the Plaintiff has won the custody battle, as long as the Defendant responds to the complaint. The Defendant has thirty days from the date they got served to file an *Answer and Counter Complaint* to the Plaintiff*s custody or divorce petition. The Answer and Counter Complaint typically denies many of the allegations in Plaintiff*s Complaint and states that the Defendant should be awarded custody and the Plaintiff should pay child support. What if the other parent doesn't respond to my complaint? If the opposing party does not file an answer to the complaint, and fails to take the parenting class as required by law, they will be in *default.* The court will likely only approve a default parenting plan stating that the you shall have sole care, custody and control of the minor children, with visitation occurring solely at your discretion. Should the other party decide they want a parenting plan at a later date, they will be required to take the parenting class and participate in mediation before regularly scheduled visitation may occur. Will I have to take a parenting class and go to mediation? Because you are a party to a domestic-relations matter involving children, you will be required to attend a court-approved parent education program. No trial, final hearing or temporary hearing will be scheduled until you do so. The simplest way to sign up for the parenting class is to call your local courthouse and provide your case number. These classes are about two hours long. If you are unable to attend a parenting class at your local courthouse, you may find a list of court approved parenting class locations (including online courses). The court will also assign a mediator to your case. The mediator assigned by the court will contact both you and the other party to set up the mediation. You will each meet with the mediator separately to discuss your concerns individually. Then you and the other parent will both sit down with the mediator and the mediator will assist you two in creating a parenting plan that best suits everyone*s needs. If an agreement is reached, the mediator will memorialize the agreement in a written parenting class and the court will enter a custody order incorporating the parenting plan. Sometimes parties do not reach an agreement in mediation and sometimes they only agree to some things, such as holidays. If an agreement is not reached in mediation, you and your child*s other parent may agree to a parenting plan at any time during this proceeding. What if I need a custody order now? Sometimes it is necessary to have an immediate hearing on custody of the children. This may occur when one party is in need of child support or is being denied access to the children. You may request a temporary order on custody and child support that will remain in effect until a final ruling in your case. A hearing on a temporary order is less formal than a trial and evidence is typically submitted by affidavit. These hearings are very short and the judge only addresses the issues that require immediate attention. Many times, these hearings are done in the judge*s chambers (behind closed doors) with only the attorneys present. Some judges have multiple temporary hearings, learning a little more about the case with each hearing. Some judges just like to set trial dates as early as possible. You keep using the phrase "Parenting Plan", what is that? The goal of every custody case is to establish a parenting plan that meets the family*s needs and best interests of the children. Some parents can easily co-parent and are very cooperative in maximizing each parent*s time with the child. Some parents have a hard time communicating and getting along and need the courts to tell them how to co-parent. A parenting plan specifically addresses all the aspects of physical custody and responsibilities between the parties. Specifically, the plan will include the following: normal day-to-day parenting schedule stating when each parent's time with the child will start; holiday and summer visitation schedules; transportation stating how the child will be transported from one parent's home to another; how the parties are going to make decisions concerning the child; and other matters. What about child support? Since the 1980s, the U.S. Congress has required each state to create a child support enforcement office and child support guidelines to be applied (as a rebuttable presumption) in every custody case. The intent of this was to reduce the number of families receiving aid benefits when there is an able bodied, non-custodial parent capable of contributing to the support of the children. Your custody matter may have even been initiated by the State of Nebraska after the child received some sort of aid.
The child support guidelines and calculations take both parents* incomes into consideration. The parents providing health insurance for the minor child will get a credit equal to the cost of providing health insurance. If parties have joint physical custody, sharing close to 50% of the time, the child support obligation will be calculated using a *joint custody calculator*, which will yield a smaller support amount or none at all if the parties have roughly the same income. The courts are not permitted to set a child support amount that would reduce the payor*s income below the poverty level. While the child support guidelines are the presumption, the courts may deviate from the guidelines for good cause. This may include but is not limited to health issues of either party or the child, student loan payments, travel expenses of the non-custodial parent, etc. What about other expenses for the child? The final custody order will also set out how parties pay for expenses such as daycare, extra-curricular activities and out of pocket medical expenses. These items are not included in the child support calculations. What if we can't agree on custody? Your custody case is a lawsuit. The end result of any lawsuit that does not settle is a trial. The judge will be presented with your case and the other parent*s case and render a decision. You may call witnesses to testify on your behalf and present documents (exhibits) to the judge just like on TV. Leading up to the trial, you are permitted to request documents and send written questions (called interrogatories) to the opposing party and they are free to do the same to you. If the child is old enough to voice an opinion, the judge may speak to the child, in what is called an *in camera interview*. This would take place in the judge*s chambers outside the presence of the parents due to sensitivity reasons. In some cases, it is necessary to appoint an attorney, called a *guardian ad litem* to represent the child*s best interest. How much will this cost me? The cost of a custody case varies greatly. If two parents agree on everything, then the lawyers only have to draft the paperwork memorializing the agreements into a court order. This is considerably less expensive than a contentious custody battle resulting in a full-blown trial. You may ask the court to order the other party to pay your attorney fees, but judges have a considerable amount of discretion on this. In my experience, judges deny requests for attorney*s fees far more than they grant them.