A child custody affidavit is a legal statement as well as a sworn document that is typically witnessed by a notary before being filed in a court. Because child custody issues often come with a lot of emotion, a major purpose of a child custody affidavit is to separate facts from emotions.
The person who writes the affidavit is referred to as the “affiant” and a child custody affidavit is typically filed during the early stages of a divorce. The affidavit helps a court decide where the children will live while the divorce case is pending and the affidavits present an opportunity for both parties to state why they should have custody of the children, at least temporarily.
Because an affidavit is a factual document, it is important to keep opinions and feelings from the facts of a given child custody case. Affidavits that are argumentative or have only one-sided opinions can harm an affiant’s case. In order to present the best affidavit, it is often necessary to draft several versions before selecting the version that will be filed with the court.
Affiants should use phrases such as “I witnessed” or “I observed” rather than “I think” or “I feel” so that their affidavits are based on statements of facts rather than opinions. Phrases like “I witnessed” and “I observed” show firsthand knowledge of the events which increases the credibility of the affiant. It is also important to include dates, times and locations whenever possible since these details also lead to more credibility.
Some states have an affidavit form that can be obtained from the court’s website; an affiant can also sometimes use a sheet of legal paper that includes the caption of the case. The caption provides the names of the parties to the case as well as the court-assigned case number. Some affidavits require notarization so it is important to sign the affidavit when the signer is in the presence of a notary.
Most affidavits are required to have language like “I, (affiant’s name), do solemnly swear that the following is true to the best of my knowledge” which is then followed by a numbered list of facts with a signature and date line at the end.
Because the timeline in divorce cases can be different and unpredictable, children cannot be kept in suspense for months or years while a divorce case is finalized. In this context, it is possible to file for temporary child custody. If one parent feels that the other is not capable of taking care of the children properly, they can file for a temporary order to be a custodial parent.
This is so even when both parents are willing and able to care for the children. The purpose of a temporary order is to help define who will care for the children and to help prevent conflicts about the child’s immediate future. The custodial parent is also allowed to set the visitation schedule for the other parent.
Spouses who are separating but have a friendly relationship may be able to write down the terms of a temporary custody agreement even without having a hearing before a judge. One option is for each parent to have the assistance of an attorney to draft the agreement. This agreement would be in force until more permanent arrangements can be made through finalized divorce paperwork. Another option is that the parents can have a formal hearing before a judge to have a temporary custody order put in place.
In some jurisdictions, the court’s website can be a valuable resource for finding temporary custody forms and many courts also have some kind of family law support center where forms and assistance with completing them can be obtained. It is necessary to file the appropriate paperwork with the court, including a “proof of service” document which declares that you have served a copy of the papers on the other parent. Both parents are then required to attend a hearing before a judge.
If you are filing for child custody and you are not sure about how to file an affidavit or meet all of the necessary requirements, it can be beneficial to first consult with an experienced child custody lawyer. It is important to understand the process and be prepared for what might come next, and an experienced lawyer will be the best to help you through the process.