How to file for Custody in Missouri: What you should know
When in a custody battle it is unwise to go in blind. That is why knowing how to file for custody in Missouri can be the difference of whether or not you win your case.
Whether you file for custody through a divorce or legal separation or whether you file a Petition for Determination of Paternity, Child Support, and Custody depends on whether your kids were born while you were married to the other parent or not.
If you are married and want a divorce, custody and support will be determined in the divorce case. If you are married and don’t want to divorce, you can get a custody schedule established by filing for legal separation. If you were not married to the other parent when the child was born or within three hundred days of the child being born, you need to file the Petition for Determination of Paternity, Child Support, and Custody, even if both you and the other parent agree as to the paternity of the child. In some situations, you need both a divorce AND a paternity case because you had children more than 300 days before you got married. This is not uncommon.
How is Paternity Established
A father can be put on the birth certificate for a child through an Affidavit Acknowledging Paternity, which is completed at the hospital after the child’s birth. Some people think that because both parents are on the birth certificate, paternity has already been established, and, it has for some purposes, but a court order determining that a father/child relationship exists between the father and child is an important legal finding and that finding should be requested if your child was not born while you were legally married to the other parent. The reason this only needs to be done if you are not married to the other parent is because Missouri law presumes the husband of a woman is her child’s legal father.
Paternity can also be established by Family Support Division through administrative processes in order to get a child support order. The Courts usually confirm those orders to make sure that it is a legal finding, but the administrative process will not set up a custody order.
The Need for a Petition for Child Custody
Court orders for custody contains something known as a parenting plan. This plan specifies the rights and responsibilities of both parents, and outlines the times both parents can see the child, and the restrictions on where they can take the child. The amount of parenting time outlined for each parent, called visitation will be enforced by the court.
How to File for Custody in Missouri 101: The Steps
We always recommend you use a lawyer for a custody case if at all possible. The reason we suggest that is because a custody case is a very complicated process which involves either a paternity determination or divorce (with concerns about marital property), child custody, and child support. Because family lawyers spend so much time dealing with these cases, they know what to watch out for in paperwork drafted by other lawyers and know what common mistakes are made when people who are “pro se” (which means representing themselves) fill out the custody forms. That being said there are standard Missouri custody petition and judgment forms that are available online if you cannot afford a lawyer or want to handle the matter yourself.
Here are some steps if you are going to handle the case yourself:
· Gather the documents that will be required to file: Birth certificate of the child, Declaration of Paternity after being filed with the Missouri Bureau of vital records, administrative child support order, and any court orders that relate to the child.
· Complete the forms in the petition for child custody.
· File the paperwork with the correct court. Be warned that there are filing fees associated with this process. If you cannot afford these fees you may inquire with the court about filing an application to waive the fee. This process is called Forma Paiperis. However, you will be required to present financial information under oath.
· You must provide the court with how to find and speak to the other parent. The officer of the court will then deliver what is called a court “summons.” This must be served in person by hand. If the person is trying to avoid being served, a specific private process server can be hired to locate and serve the other parent. There are fees to be paid to a sheriff or a private process server to give the other parent a copy of the paperwork in person.
· After being served, the other parent has 30 days to respond. Your case will most likely be set for a hearing in front of a judge, but the Court could wait for you to do so if you are representing yourself.
· If the other parent is served and fails to respond, or appear in court the person will be deemed “in default.” When in default the court no longer has to give that person notice of any future hearings, but most family courts require we try to give them notice anyway since they disfavor doing custody cases by “default”. Taking a “default judgment” would mean that the case can be decided without the other parent’s presence because they failed to participate after being given notice.
· Sometimes when pursuing how to file for custody in Missouri you will be asked to participate in a parent orientation program. This information is usually provided when you file your papers with the circuit clerk.
· If the parent does respond or appear in court you may be referred to mediation to set up a parenting plan. It is best if both parents can agree on the plan. Check with your court for any mediation services you may need. If the parents agree they can send a joint plan in for approval. Judges will only approve plans that are in the best interest of the child.
· If you cannot agree, the case will be set for trial and you will need to be able to provide admissible evidence supporting all of the points you want to present at trial.
If you have further questions or need any legal assistance at all, contact the legal professionals at Flesner Wentzel. We will be happy to help you file all the paperwork you need and win your case. We recommend that you call us now before your ex does.”
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