The answer is….YES and NO.
Under the rules of civil procedure, the party that files first in a family court is referred to as the petitioner, and the other party is referred to as the respondent. The petitioner is given the chance to speak twice, being the first and the last and that is one of the advantages that a petitioner has over the respondent.
By being the first to file, there is an advantage of playing offense instead of being on constant defense and playing catch up, but that does not influence the decision of the court.
It only gives the petitioner more time to prove his or her case. The court does not “favor” the party that files first. All parties in a child custody case are considered equal under the law.
Given all the factors the court considers before deciding a custody case, there is no reason to favor the petitioner for petitioner’s sake.
Before thinking of filing your case first, it is smart to talk with an attorney and discuss your case before rushing to court. An attorney can analyze the facts of the case and give direction that will help you decide whether to file first, or wait for the other party to make a move.
How the Court Decides on A Child Custody Case
The court will give both parties time to present their side of the story and review evidence they have. Keep in mind, the decision of child custody may come through the following:
Settlement
The family court judge will first encourage the parties involved in a child custody case to have informal settlements of their case. This can be done through mediation where a judge may nominate a mediator to help the parties agree on child custody.
The parents may also negotiate by themselves without a mediator, or with the help of a notary. Once the agreements are arrived at, the agreements are then presented to the judge for approval.
This normally happens in the pre-trial stage but when the parties fail to come to terms or agree, then the only option left is…
Trial
This is a formal hearing where the judge is the final decision-maker.
The Contesting parties, through their attorneys present themselves in court with their evidence and witnesses where possible. At this stage, the petitioner and the respondents are heard by the court, and thereafter, a decision is made.
It sounds quick and easy, but it is absolutely NOT. The smallest request or rebuttal can add numerous months and additional court visits to the process. On average, plan for a 2 to 3 year fight in court.
The petitioner in this stage may have a better platform to have their story heard first and last while the respondent interjects in between, but remember this is a marathon, not a sprint.
That head start disappears after a couple of hearings.
In this stage, the judge will consider a number of factors before deciding on the custody of the child or children.
These factors will include:
- Age of the child.
- The ability of the parent to provide good care of the child or children.
- An emotional bond existing between the parents and the child.
- The parent who has been the custodian before custody was filed.
- The parents’ living situation and the safety of the child.
- The wishes of each parent vs the preference of the child.
- Mental and physical health of the parents.
- Domestic violence, neglect, or abuse if any.
Above all, the judge will consider what is in the best interest of the child or children. With all these factors, there is no real point where the judge is likely to favor who filed for custody first.
What Are the Likely Advantages of Filing First?
Though the court may not favor the party that files first, there are certain advantages the civil procedure may present to the petitioner. These may include:
Control Over Litigation
The first party to file a child custody case sets the pace of the litigation process.
When you are the pacesetter, you are more able to dictate the direction and rhythm of the trial, forcing your ex to respond to your concerns well before they can voice any of their own.
This will let your ex know what you are serious about or willing to compromise on. At this point, mediation will certainly be offered or strongly advised by the court.
Of course, you may also be keen on going to trial and that means your ex will have time to respond with their own demands, and your advantage starts to dwindle.
Chance to Speak Twice
The other advantage that you may have by being the first to file is the chance to speak twice when presenting your case. This is just a quirk in the rules of civil procedure, as we mentioned earlier.
In this situation, as a petitioner, you get to present your case before the other party responds, then you also have a chance to present your witnesses or evidence first to support your case. This keeps your ex in a defensive posture, forced to react and respond rather than attack with their own evidence or witnesses.
What Are Some of the Reasons You May or May Not Want to File First?
In a perfect world, there is no favor by the court to any party whether it is the first to file or not. The court would simply base their judgment based on the best interests of the child.
But, in the real world, there is bias and favoritism and tempting fate may not be the best option. some of the reasons that may oblige you to want to file first may include:
A Desire for A Change in Location
If you are planning to move, or have already found a new home that is in a different county or state, you may want to file first.
When you file in the courthouse in your new location, you will have “home court advantage” so to say. That can come in very handy for a number of reasons.
You will be most likely driving less, for one.
Also, it is much harder for your ex to argue that moving would be against their best interests. You are already there and they have no way of knowing what will happen when trial finally comes about
Another example would be if you are moving your job or business to a new location and will have the kids in daycare close to your work. If you are a member of the Armed Forces, it is best to file first if you will be relocated to a new base.
If There Has Been Recent Drama
Here’s the scenario… Your ex has just gotten a new partner, and they don’t like you. So, during the last drop off or pick up, they started yelling and shoving, and the police were called to diffuse the situation.
If this becomes a pattern, one of these times, someone will be pressing charges, getting restraining orders, or even spending the night in jail.
Even if you and your ex get along fine, this new person drama can and will cause problems.
When this is the case, you may want to seek temporary emergency custody, so the children are not around this toxic person when they start trouble.
The added bonus is, temporary custody, most times turns into permanent custody, since the court is hesitant to make harsh changes to the child’s routine.
So, if you intend to request temporary custody any time soon, you should probably file first.
The Child Is of Age
For a child who is less than 5 years of age, the court may consider the mother as favorable to provide primary physical custody if she is suitable enough.
At that tender age, as a father, you should not be swift to be the first one to file for custody if you are seeking physical custody. In most cases, a father may be granted only visitation rights or equal parenting time but may not be granted sole custody.
Therefore, if the mother is suitable and fit enough to gain custody, it is important to wait until an age where a child is more independent, preferably above 5 years old.
You Have Finances Gathered but Your Ex Doesn’t
The unfortunate truth is, custody cases are expensive. They can end up costing both parents 10’s of thousands of dollars. Lawyers want to get paid, otherwise they start withdrawing from the case.
If the other parent doesn’t have a job or isn’t earning enough to hire their own lawyer, they may be willing to settle with your proposal, just to avoid the costs associated with a long drawn out custody battle.
If you have the financial means, it is in your best interest to file first.
A Parent Is Incarcerated
If your ex recently went away to jail or prison, depending on how far along they are with their case and sentence length; if there was any violence before incarceration, then chances are good that the judge will not allow them unsupervised visits with children until such time as they complete parenting classes or anger management courses. Now is the time to file first.
Final Thoughts…
There are situations that may compel you to be the first one to file for a child custody case. While the situations may vary by nature, it is important to understand that the court will decide the case based on what best suits the child’s interests and not who files first.
The best time to file for custody is when you are calm, rational, and most importantly, have a plan. The last thing you want to do is file on impulse and regret it later.
The legal system can be slow, frustrating, and even intimidating at times; but if there has been an irreparable change in circumstances, then it may be time for you to take action before things get worse and one of these examples becomes reality.
