This is one of the most frequently asked questions about child custody. For many parents, family court is their first real court experience. We all see movies and shows on T.V. depicting an exaggerated version of the courtroom drama. But besides a random traffic ticket or marriage license most adults have not experienced the full blown trial setting of a legal case.
So what does a child custody case consist of?
Contract Law? Criminal Charges? Personal Injury? Domestic Relations?
Well…. to be honest, some child custody cases can touch on all these areas. Let’s start with the basics.
Child custody involves two parties or parents that have separated or divorced and there is a child or children involved. Each parent may want to have physical custody of the child, and if they cannot agree and settle matters outside the court, one parent may seek the courts’ intervention. A child custody case is filed, and that is where the court process regarding custody began.
Child custody case as we discuss here is just a single facet of family law. It involves a dispute between two parents over the custody of the child or children.
Cases are classified into two main categories. That is civil and criminal cases.
What Is a Civil Case?
A civil case is where there is a legal dispute between two parties or more. In a civil case, one party can file a complaint in court and pay for the filing fee. The party that files the petition is called the petitioner, and the other party is referred to as the respondent.
After the filing has been done by the petitioner, the respondent is served by the court, or a third party, and the judge sets the date for the hearing. As you can see, the process is just like what happens in a child custody battle where one parent files for custody, then the other party is served the orders by the court to appear for the hearing.
Some of the examples of civil cases include the cases that touch on financial issues like bankruptcy, or financial disputes, defamation cases, employment law, housing, and family law.
What Are Criminal Case?
Criminal cases involve a lawsuit by the state (or, on behalf of the people) against a person who has behaved in a certain way that is deemed as an offense against society, the state, or the public. Since child custody does not fit into this nature, then it falls within the premises of civil cases where family law falls.
But this is not to say criminal charges can’t originate in the family court. This is where custody cases really can take a dark turn. But this is not to say criminal charges can’t originate in the family court. This is where custody cases can really take a dark turn.
Some of the offenses that can cause criminal charges or jail time are:
- Domestic violence of any kind
- Lying in court
- Violating court orders
- Child abuse
- Ignoring a rule to show cause
How Do Criminal Charges Come up In Child Custody Disputes?
They don’t always, but they can happen. A lot of times if one party has a history of breaking the law or has violated court orders before, the other parent may file for modification of an existing order or seek immediate relief by filing an order to show cause which is basically asking the court to force the other parent to abide by the rules set in place in any existing orders.
After a petition is filed and there is a hearing on whether this will be considered a civil case or a criminal case, then this will determine who prosecutes it.
I would suggest a look at Greg Ellis in his new book, “The Respondent: Exposing the Cartel of Family Law.”
Family law is within civil law and it is also important to note that family law cases include the following:
Divorce cases involve the termination of a marriage between the two individuals who were formally married. Different states have different grounds for divorce and can either be no-fault or fault. That means a partner in no-fault divorce can file for divorce and the court will consider that as sufficient to terminate the marriage without the need for more evidence. In a fault divorce, a partner seeking divorce must provide grounds and sufficient evidence to the judge.
All adoption cases will require the approval of the court whether it is domestic or foreign adoption. It is also important to note that each state has its own adoption laws and procedures and requirements that every parent seeking to adopt must fulfill.
Child Custody Cases
Cases of child custody are initiated by parents who have divorced or separated. As we discussed, one parent can initiate a child custody case with the court before a hearing is made. Child custody cases also fall into different types – sole, legal, and joint custody.
Child Support Cases
It is the responsibility of both parents to support the child after divorce or separation. One parent living with the child can file for child support if the other parent can’t agree to pay for the support. The custodial parent can, therefore, seek the enforcement of the court to have the non-custodial parent pay for child support as required by the law.
Family law is a broad area and as we have discussed. We can, therefore, agree to the question, “Is child custody a civil case?’’ Yes, child custody is a civil case.
When you are in the midst of a child custody trial, it is difficult to know what aspects of civil law apply. We hope these resources will clarify some areas where confusion may exist so that you can focus on other important parts of defending yourself against false allegations by trying to understand more clearly which area(s) they fall under.
It should also give you an idea about whether or not criminal charges might be applicable for your case. Even if child custody is technically civil law, the court still has to follow certain rules and guidelines when deciding how best to care for your children.