How to File a Petition in Family Court
Family court handles cases involving family legal matters such as divorce, child custody, child support, and domestic violence protective orders. To initiate a case in family court, you need to file a petition which formally requests the court to make a decision or take action on your case. Here is a step-by-step guide on how to properly file a petition in family court:
Determine the Family Court Jurisdiction
The first step is determining which family court has jurisdiction over your case. Jurisdiction refers to the authority and power of a court to hear and decide cases.
Location of the Parties
Family court jurisdiction is usually based on the county where the parties reside. If you and the other party live in the same county, you would file in the family court in that county. If you live in separate counties, check the rules on which county would have the jurisdiction.
Subject Matter Jurisdiction
You also need to make sure the court has subject matter jurisdiction over your type of case. Family courts generally handle divorce, custody, support and domestic violence cases. Other issues may fall under the jurisdiction of another court.
Understand the Legal Requirements
You need to understand the legal requirements and grounds for filing your type of petition. This ensures your case meets the criteria to be heard in family court.
For divorce petitions, you must meet residency requirements and have valid grounds for divorce under state law such as adultery, abandonment or irreconcilable differences.
Child Custody Petitions
Custody petitions require showing standing as a parent, guardian or custodian to seek custody rights. You need to provide valid reasons for custody modification if an order exists.
Domestic Violence Petitions
Domestic violence petitions require alleging an incident involving violence or threat that warrants a protective order. Physical injury is not always needed if you fear violence.
Consult an Attorney
It is highly advisable to consult a family law attorney when preparing to file a petition. An attorney can advise you on the procedures, forms and laws that apply to your case. They can ensure your petition contains all the legally required elements to avoid dismissal. You also need an objective perspective on the merits and validity of your potential case.
If you cannot afford a private attorney, look into free legal aid organizations that assist low-income individuals with family law issues in your area. They can help prepare documents and represent you in some cases.
Some courts require trying mediation before allowing divorce or custody petitions. An attorney can guide you through alternative dispute options like mediation if available and appropriate.
Collect Required Documents
There are usually several documents you must gather and attach to your original petition filing. This provides the court background information and evidence relevant to your case.
You will need copies of identification documents like drivers licenses, birth certificates and passports for yourself and all other parties named in the petition.
Prior Court Orders
If your case involves divorce or child custody, provide any existing relevant court orders like separation agreements, custody orders and restraining orders.
For divorce or child/spousal support cases, include documents verifying income, expenses, assets and debts like tax returns, bank statements and mortgage documents.
Any written statements or records supporting the facts of your petition should be included like police reports, emails or text messages.
Fill Out the Petition Paperwork
The petition forms must be filled out completely and accurately. Some courts have do-it-yourself packets for basic family law petitions. Seek guidance to ensure you select the right forms and provide the required information.
The caption identifies the parties, court location, case number and type of petition. Fill this out once you file.
Provide your full legal name and contact information. List names and ages of minor children involved. The other party’s information is also required.
Grounds for Petition
State the legal grounds and facts that entitle you to file the petition. Refer to the requirements for your case type discussed above.
Clarify the orders, judgments or other relief you want the judge to grant by ruling on your petition. Be as specific as possible.
Signature and Date
Sign the petition in front of a notary public. List the city, state and date where signed.
File the Original Petition
Filing the petition involves submitting it to the clerk of the family court with jurisdiction. This is an important procedural step that officially commences your case.
Be prepared to pay a filing fee, though waivers may be available for low-income petitioners. The clerk can advise you on the amount and methods of payment.
Provide the court with the original petition plus at least 2 copies. The clerk will stamp them with the filing date and case number and return copies to you.
Service on Other Party
Once filed, you must properly serve the other party with a copy of the petition and a summons from the court. The clerk can provide forms and instructions for service.
Attend Mediation if Required
Some family courts require trying mediation first before your petition gets placed on the docket. This involves meeting with a neutral mediator who tries to facilitate agreement between the parties on issues in the petition.
Benefits of Mediation
Mediation can resolve disputes faster and less expensively than going through full litigation. The parties craft their own solutions with the mediator’s help.
In court programs, the mediator is appointed but private mediation allows the parties to jointly select the mediator. Look for mediators experienced in family law.
You must be prepared to provide complete financial disclosure for divorce and support mediations. This includes tax returns, bank statements, bills and other evidence to determine support amounts.
If successful, a mediated agreement covering some or all issues can be presented to the court for approval and entry of orders. If mediation fails, your case proceeds through the normal court process.
Participate in Hearings and Trial
After filing the petition, the court will hold hearings to consider petitions and issue final orders. Hearings may cover temporary orders while the case proceeds to final resolution at a trial.
Temporary hearings are held quickly after filing to resolve pressing issues like child custody or domestic violence protection while the case proceeds. Limited witness testimony is taken.
Settlement conferences involve meeting with a judge to discuss options for resolving your case without a full trial. The judge cannot force settlement but can point out strengths/weaknesses.
Contested petitions often go to trial where both parties present evidence through documents and witness testimony. The judge then decides and issues final orders. Trials can involve long waits after filing.
Review Court Orders
Once the court issues final written orders, review them closely to ensure the court granted the relief you properly requested in your petition. If you disagree with the court’s ruling, you may be able to appeal.
Consult Your Attorney
Have your attorney review the court order with you to discuss your options. If you did not request certain relief in the petition, the court may not have addressed it.
Abide By Court Orders
You must abide by whatever the court ordered, even if you disagree with the outcome. Violating family court orders can result in contempt sanctions by the court.
If there are valid legal grounds showing the court misapplied the law or abused its discretion, discuss filing an appeal with your attorney immediately since deadlines are strict.
Filing a petition to initiate a family law case in court is an important step with lasting consequences. Investing time to understand the jurisdiction, legal requirements and proper procedures can help ensure your petition gets accepted and ultimately decided on the merits. While the process varies by state, having an experienced family law attorney guide you through the intricacies can maximize the potential for a favorable court order. With persistence and patience, filing a petition provides the opportunity to formally request resolution of your critical family law matter.
Q: Can I file a petition in family court without an attorney?
A: Yes, you can file a petition yourself without an attorney but it is not advisable since family law involves complex procedures and laws best handled by an experienced attorney. Many courts have self-help resources for unrepresented parties.
Q: What is the difference between a petition and a complaint?
A: In most courts, a petition is filed to initiate family law cases like divorce, custody, and support matters. A complaint is terminology used to start civil lawsuits or criminal charges.
Q: What if I cannot afford the filing fees for a family court petition?
A: You can request a fee waiver by filing an affidavit with your petition demonstrating your income and expenses. The court clerk can provide the fee waiver request forms.
Q: Can I file a petition to change my child’s name?
A: Yes, most family courts allow name change petitions for minor children in custody cases if the judge finds the name change serves the child’s best interests. The other parent must consent or receive notice.
Q: How quickly will the court schedule a hearing after a petition is filed?
A: The timeline varies greatly by jurisdiction. Temporary hearings may be set within a few weeks while final trials could take many months. Judges have wide discretion over scheduling.