Petition for Child Custody
The Petition for Child Custody is a petition to use in the special circumstance where the requirements for the establishment of paternity have been met under Missouri law but no custody order (parenting plan) is in place. A person is presumed to be a parent when a mother and father both sign an Affidavit Acknowledging Paternity in the hospital at the time the child is born, or a man who believes he is the father of a child files a Declaration of Paternity with the Missouri Bureau of Vital Records. Paternity is established when a court enters a judgment finding that a person is the legal parent of a child. An administrative order of child support, by itself, does not establish paternity.
What is the purpose of a Petition for Child Custody?
A court order for child support may or may not establish custody rights between the parents and the child. A child has a right to frequent, continuing and meaningful contact with both parents, as appropriate, under Missouri law. A court order for custody contains a parenting plan that specifically addresses the rights and responsibilities of the parents, as well as the times and places both parents have for parenting time with the child. A court order for parenting time (also called “visitation”) is enforceable by the court.
How do I know if paternity has been established?
A man can be recognized as the father of the child by:
1. Consent: Mother and father both may sign an Affidavit Acknowledging Paternity in the hospital at the time the child is born; or
2. Declaration of Paternity: A man who believes he is the father of the child can file a Declaration of Paternity with the Missouri Bureau of Vital Records; or
3. Judgment: A judgment entered by a court finding that a man is the legal father of the child.
However, an administrative order for child support is not a court order and, by itself, does not establish custody. When the administrative child support order is approved by a court, it may contain a judicial determination of custody.
You must look at the court order(s) that set child support or otherwise involve the child. If the order makes a determination of paternity (names a legal father), you may use this Petition for Child Custody if you are named as a parent and there is no court-ordered parenting plan (custody order). If you are not sure, take your paperwork to a lawyer to discuss your status as a legal parent.
How do I get started?
1. Gather the documents you may need: a certified copy of the child’s birth certificate, Declaration of Paternity filed with the Missouri Bureau of Vital Records, administrative child support order and court orders involving the child.
2. Download and complete the forms in the Petition for Child Custody packet available on this website (you will be referred to the packet at the end of this section).
3. File the required paperwork with the court that entered the order establishing paternity of the child (this is the court that has “continuing jurisdiction,” the authority to enter custody orders involving this child). Make an original and two copies of the Petition for Child Custody. One will be placed in a court file, one will be used to notify the other parent, and one will be file stamped and returned to you. There are filing fees connected with filing this Petition. Consult the circuit clerk's office for the amount due and method of payment, or check for filing fee information online. If you cannot afford the court filing fee, inquire about filing an application to have the fee waived, which is called in forma pauperis (in the manner of a poor person). You will be asked to provide the court with detailed financial information under oath so a judge can decide if you are eligible for a waiver.
4. The court clerk will prepare a “summons” to be served on the other parent. The sheriff or another court officer hand delivers the petition and the summons. It is important to provide the court with very specific information about where, how and when to find the other parent. A special or private process server may be appointed by the court when it is difficult to find a person or if a person is trying to avoid being served.
5. After the other parent has been served and given 30 days to file a response, your case may be set for a hearing before a judge or commissioner. If the other parent does not file any answer or appear in court, that person is considered “in default.” This means the court is not required to give that person notice of future hearings. The case may be decided without a person in default taking part. Check with the local court clerk about the method for scheduling a hearing.
6. You may be required to attend a parent orientation program before the case moves forward. Information about the program may be provided to you at the time you file your paperwork with the circuit clerk. Check with the local court clerk if you are unsure if this is a requirement in your case.
7. If the parent files an answer or appears in court, you may be referred to mediation to discuss the parenting plan. It is best for all concerned if both parents can agree on a parenting plan. MARCH Mediation is a non-profit organization funded by the state to offer mediation statewide for this purpose. Check with your court for other mediation services that may be available. Where domestic violence is occurring, however, mediation may not be appropriate. It is important to inform the court if this is your situation. When parents agree about some or all of the parenting plan issues, they can submit a joint plan to the court for approval. Judges appreciate the time and efforts parent take to develop a parenting plan and will approve agreements that are in the best interest of the child.
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8. A pre-trial hearing may be scheduled so the judge or commissioner may review matters that need attention before the final hearing. At the final hearing (trial), the judge or commissioner will hear evidence and decide the case. If your case is contested, you will have to prove your case with evidence during the hearing. This may include your testimony, testimony of witnesses, documents and exhibits. You have the right to get information before the hearing about other witnesses who will testify and copies of documents that will be used. The process for finding out this information is called “discovery.” Discovery has time limits and usually is completed before the case is set for the hearing. The discovery process and admission of evidence is complicated. You should consult a lawyer if these issues are involved in your case.
9. The decision of the judge or commissioner is written up as a “judgment,” which will be signed by the judge or commissioner. Courts usually ask a party in the case to write up the judgment. If your case is contested you probably will need the assistance of a lawyer to draft the judgment.
Can I contact the judge or commissioner if I have questions or concerns?
The judge or commissioner must remain impartial in order to hear your case. The judge or commissioner and persons in the case only can communicate when everyone involved in the case can hear and join in the discussion. This usually happens in the courtroom or the judge/commissioner’s office. The judge or commissioner will not read a letter you send to the court. Court rules generally require the filing of a pleading or motion with notice to all other persons involved to bring the matter to the court’s attention.
What if there are special circumstances involving the welfare of the child?
Missouri, the law considers “joint custody” to be in the best interest of the
child. If parents are unable to agree on
a parenting plan, the court selects one parent as the “residential parent” for
school and mail purposes. The court
decides the role of each parent in decision-making and care of the child
(commonly called custody and visitation). “Sole custody” can be ordered when
appropriate. The court wants to know about
circumstances that affect the best interests of the child. A guardian ad litem is appointed to represent
the interests of the child when abuse or neglect is alleged. Parenting time also may be restricted under
some circumstances. You should consult a
lawyer if special circumstances exist. This is very important if there has been domestic violence or concerns
about child abuse or neglect.
How can parenting time be enforced after a custody order is entered by the court?
Parenting time is not dependent on the timely payment of child support, although this is another important parenting responsibility. The police generally do not get involved without a court order that spells out parenting time. Even when an order exists, the police are reluctant to make determinations better made by a judge. The parenting time scheduled in the judgment is an enforceable court order. A parent who has been denied court-ordered parenting time may apply for enforcement by filing a family access motion. This process is explained on this website under the Family Access Motion topic. Some courts have specific programs to monitor exchanges of children according to the parenting time spelled out in the judgment. Contact your local court clerk's office to determine if a program is available in your area.
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