How to File a Motion for Child Visitation

Drafting Your Motion

Choose the correct court. Generally you must file a motion for child visitation in the county where the child has lived for the past six months. If there is an existing custody or parenting time order, however, you typically will need to file your motion with the court that entered that order.

Search for forms. Most states have fill-in-the-blank forms that have been approved by the courts to use if you want to request visitation. The forms typically will come with instructions on how to fill them out correctly. You should read these instructions carefully and ask for assistance if you don't understand any part of the forms. If the forms aren't filled out correctly, your motion may be dismissed. Often someone in the clerk's office can explain certain aspects of the forms or help you fill them out, but he or she cannot give you legal advice or tell you how best to answer. The form will ask initially questions such as when or if you were divorced or separated from the other parent, and when or if an existing custody or parenting time order was entered. Then you must describe the ways in which the other parent has interfered with that order, or how you wish to have that order changed.

Gather related documents and information. You will need documents related to the child and your relationship with the child, such as a birth certificate, divorce decree, or order of paternity, to accompany your motion. You also will need any prior custody or parenting time orders that have been entered regarding the same child who is the subject of your visitation motion. You also will need the legal name and accurate contact information for the other parent so he or she can be served with your motion. Since you will have to indicate why you are requesting visitation or need an existing visitation order modified, you should gather any documentation or evidence of the reasons for your request. For example, you may need to change the times you pick up and drop off your child because your work schedule has changed. In that case, you would want to attach documents such as old and new work schedules showing the change, or an affidavit from the manager who made the change.

Consider consulting an attorney. Although you aren't required to have an attorney, child custody issues can be complex and having an attorney may be the best way to ensure that you get the visitation schedule you want. Typically attorneys will file this sort of motion for you for a relatively modest fee. If you're concerned about the costs, you might also check your nearest legal services office or family law clinic for free or reduced-fee options. You also can get limited scope representation, in which an attorney does specific things for you such as fill out forms – typically for a flat fee – but does not handle the entire case.

Fill out your forms. The forms typically will ask for information about you, the child, and the child's current caretaker, as well as details regarding why you are asking the court to order visitation. In addition to your motion, there may be other forms such as a summons or certificate of service, or county-specific forms required by particular courts. If you're using forms that are valid statewide, call the clerk's office to find out if there are any additional forms you need.

Sign your forms. Some jurisdictions require you to sign a motion for child visitation in the presence of a notary public. You typically can find notary publics in the clerk's office of courthouses. Many banks also offer notary services to their customers. When you go to the notary, bring the papers you need to sign along with a government-issued photo ID such as a driver's license or a passport. The notary will verify your identification before you sign your documents. After you've signed your forms, make sure you make at least two copies of everything you want to file with the court. The clerk will keep the originals for the court files, so you'll need at least one copy for your own records and one copy for each person who must be served.

Filing Your Motion

Take your paperwork to the clerk's office. You must file your motion with the clerk of the court that will hear your request. You will be charged a filing fee to file your motion. This fee typically will be under $100. You can call the clerk before you go to find out how much the filing fee will be and what methods of payment are accepted. If you can't afford the filing fee, you can apply for a waiver. The court will review your income and assets to determine if they are below a certain threshold. If they are, your application will be approved and you won't have to pay filing fees.

Have the other parent served. Before the court can proceed, the other parent or current caretaker of the child must have notice of the motion you've filed. Depending on the circumstances of your case, other people also may be entitled to notice of the proceeding. For example, if you are the child's grandparent and are requesting visitation, you typically must have both of the child's parents served – particularly if they have joint physical or legal custody. Keep in mind that you also will have to pay a fee for service, and these fees typically cannot be waived, even if your other filing fees have been waived. In some states, you also may be able to have anyone over the age of 18 who isn't involved in the case serve the documents on the other person. You can find out from the clerk if this option is available or if you must use the sheriff's department or certified mail.

File your proof of service. The proof of service shows the court that all parties have adequate legal notice of the lawsuit. In some courts, you don't need to file this with the clerk, but you do have to bring it with you to court on the date of your hearing. If you had a sheriff's deputy serve the other parent, typically he or she will file the proof of service after the papers have been delivered.

Complete any required classes or programs. Some jurisdictions may require parenting classes or family court orientation before a judge will hear a custody or visitation case. For example, Illinois courts require you to attend a parenting education class if your motion for visitation is connected to a pending divorce case. The class lasts around four hours and teaches you how to avoid hurting your children during divorce. If there are any required classes you must complete, the clerk will let you know and give you more information about them when you file your motion.

Participate in mediation. Your court may require you to attempt to come to an agreement with the other parent through mediation before a full hearing is scheduled. If the court orders mediation, you typically will be provided with a list of mediators or mediation services to use. You then have the opportunity to pick a mediator with whom you feel comfortable. These services – or at least an initial session – often are provided by the court system free of charge. If you and the other parent are able to come to an agreement regarding a visitation schedule, you will still have to go to court. However, instead of arguing your respective sides and having a judge decide the schedule, you simply present the agreed schedule for the judge's approval. You may have to fill out a stipulation form to file with the court that outlines the arrangement to which you've agreed. Your signatures on that form may have to be notarized.

Prepare for your hearing. Before the date of your hearing, make sure you've practiced what you're going to say to the judge and have all of your evidence organized. If you have any documents or photographs you want to submit as evidence, make sure you have at least two copies in addition to the original, so that both parties and the judge will be able to view them. If you plan to have witnesses testify on your behalf, you may need to get the clerk to issue a subpoena so they are required to appear at your hearing. Write out notes of what you plan to say to the judge and practice it several times so you are prepared to speak. You also may want to meet with your witnesses before the hearing so they have an understanding of the types of questions you will ask and the questions that might be asked by the other parent.

Attending Your Hearing

Arrive at the courthouse on the date of your hearing. Try to arrive at the courthouse at least 30 minutes early so you have time to pass through security and find your courtroom. Keep in mind that if you don't arrive for your hearing, the judge typically will dismiss your case. On the other hand, if the other parent doesn't show up you may be entitled to a default judgment. Dress neatly in conservative clothes, and treat all court staff and officials with respect. If you have witnesses testifying on your behalf, make sure they know when and where they need to be for your hearing. You might consider meeting your witnesses beforehand so you can travel to the courthouse together.

Go to your assigned courtroom. Since there may be other cases scheduled to be heard by the judge that day, take a seat in the gallery until the judge calls your name. In most courthouses, there will be a docket listing somewhere in the lobby that indicates the cases that are being heard that day and the courtroom to which they've been assigned. You also can find out where you need to go by asking in the clerk's office.

Present your motion. Since you filed the motion, typically you will have the opportunity to speak to the judge first. Speak only to the judge, and use a loud and clear voice so everyone can hear you. Only speak when you are called upon or asked a question, and don't interrupt anyone else – especially the judge – when they are speaking. If you bring witnesses, you will be allowed to ask them questions. The other parent will have a chance to ask them questions as well. Keep your statements concise, and stick to the facts. Tell the judge why you're there and that you want the judge to schedule visitation for you. If there are other pending cases related to your visitation motion, be prepared to discuss them as well.

Listen to the other parent. After you've finished, the other parent has the chance to explain his or her side of the story and express disagreement with the visitation plan you've requested. The other parent also will have the opportunity to enter evidence and call witnesses. If he or she calls witnesses, you'll be able to ask them questions as well. Take note of anything the other parent or the witness says that you want to bring up, and you can ask about it after the other parent has finished asking his or her questions.
#Receive the judge's decision. The judge may issue a decision on the spot or may take time to review the evidence and documents presented before entering an order. In addition to granting you custody, the judge may order additional remedies such as make-up time for visitation you should have had in the past and were denied, or money to cover your attorney's fees and court costs.