Legal & Physical
Possession is Not Custody
Has Paternity Been Established?
There is a common misconception that the mother of a child who was born out of wedlock has "custody" of that child. However, she merely has possession of the child, not custody. This remains true, even if paternity and child support were already established by the Department of Health and Welfare. Neither parent has either "legal" or "physical" custody until it has been established in a court of law.
However, you probably know the old saying, that "possession is 9/10ths of the law," and until custody is established, law enforcement cannot help either parent to get visitation with the child, or to get the child back from the other parent if they refuse to return the child after being allowed visitation. This is a strong reason not to delay filing to establish each party's respective legal rights, including the decision making authority over the child's health, education and welfare, and obtain a clearly defined and enforceable residential schedule.
A Petition for Custody (and Visitation) is actually very similar to a Petition for Divorce, and requires virtually the same forms. The only significant difference being, that in a custody case, there are no property or debt issues. If child support has not been previously established, it must be included in a Petition and Order for Custody. If child support has been previously established by the Department of Health and Welfare, it may be appropriate to include a modification or cancellation of the pre-existing support amount in your Petition for Custody, based upon the new and formally established custody & residential time sharing arrangements.
A typical Custody package includes a coversheet, and instructions for copying, assembling, signing, filing, and serving the following documents:
Petition to Establish (Paternity) Custody and Support
Affidavit Verifying Income (if minor children)
Child Support Worksheets (if minor children)
Family Law Case Information Sheet
Affidavit of Service (if parties are not in agreement)
Acknowledgment of Service (if parties are in agreement)
Stipulation for Entry of Custody (if parties are in agreement)
Motion for Default (if uncontested)
Affidavit in Support of Default
Order of Default
Judgment of (Paternity) Custody and Visitation
If paternity of the child has already been legally established by the Department of Health and Welfare in order to obtain a child support order against the father, then either parent can file a Petition for Custody and to Modify Child Support. If paternity has not yet been legally established, then you need to file a Petition for Paternity, Custody, Visitation and Support.
Actions for Paternity and Custody are governed by the following sections of Idaho Code. You can easliy research more information the following links:
- Ready to File
We have helped several thousand Idaho residents file for and establish paternity, as well as legal and phyysical custody during the past 25 years, and we can help you to do the same. You don't need to pay thousands of dollars to an attorney to do this, nor do you have to struggle with poorly written and hard to understand do-it-yourself forms. We will prepare everything you need, ready-to-file.
Fees and Expenses:
Establish Custody . . . . . . . . . . . . . . . . . . . . . . $ 250.00
Establish Paternity and Custody . . . . . . . . . . . $ 250.00
Reply to Custody Petition & Counterclaim . . . $ 250.00
Court Filing Fees:
Petition for Custody. . . . . . . . . . . . . . $ 166.00
Reply to Petition & Counterclaim . . $ 136.00
If, after you file with the court using our prepared forms, your case becomes contested, and you can't afford a lawyer, or aren't sure you will know what to do before or while in court, click the nearby bookshelf image. You will be linked to a fantastic resource that can provide you with the knowledge and confidence to successfully represent yourself, without an expensive attorney, and greatly improve your chances of winning your case.
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Send us a quick message, indicating the nature of your legal matter or questions. We can't give actual legal advice, but we can give you legal information (which is not the same as legal advice), and we can provide court-ready legal documents. As soon as we receive your contact information, we will send you a Questionnaire, tailored to your specific legal matter, to elicit information necessary to prepare documents for you.