Answer And Counterclaim For Child Custody: Fill & Download for Free

Here’s one way to count (I’ll use the jurisdiction where I practice divorce and family law (Utah) as an example):A child custody case (whether that be a divorce, a paternity action, or just a custody case) is commenced with a complaint or a petition filed with the court.The response to a complaint or petition can be made by an answer or “answer and counterclaim”. The difference between an answer and an “answer and counterclaim” is that an an answer is a respondent's first pleading that usually consists of denying the petitioner's allegations and articulating the defendant’s defenses (Black's Law Dictionary (11th ed. 2019)). An answer and counterclaim consists of an answer, plus a claim for relief against the petitioner (also termed counteraction or countersuit) (Id.).The "reply" is the petitioner’s response to the respondent's counterclaim. It usually consists of denying the respondent’s counterclaim allegations and articulating the petioner’s defenses to the counterclaim.And that’s the limit: 1) complaint or petition; 2) answer or answer and counterclaim. And if a counterclaim is filed, it is followed by 3) a reply to the counterclaim. You can’t file anything else as a means of asserting a cause of action, UNLESS you file (assuming you are allowed to file) an “amended” complaint/petition, answer, counterclaim, or reply.

Answering the complaint preserves your right to present a defense in the case. If you intend to participate and have your side of the story decided by the court, you must file an answer and possibly a counterclaim. If you ignore the summons and simply do not appear, the case will proceed without your input. As you can imagine, that is a recipe for disaster.

The elements of a child custody claim between the parents could be said to be:There is a child,whose legal parents¹ are not an intact household (defined as both parents and child cohabiting), andat least one party requests a custody order.²The elements of a third-party custody claim are:There is a child,to whom a third party may assert standing in a way recognised by the local jurisdiction,³ andnot allowing the claim will be detrimental to the child’s interests.⁴So, no, if you are the parent, you don’t have to “have something” on the other parent, because the custody court has categorical jurisdiction over the dispute (as long as personal jurisdiction, residency, &c are met, of course) and may make an order in favour of either party or awarding some form of shared custody. The standard is simply “best interest of the child.”Although there are certain types of crimes that might largely preclude custody,⁵ having a criminal record does not automatically excise parental rights of the “criminal.”If you are a third party, you do not exactly need to “have something” on the parents, but you do have to be able to meet a somewhat elevated burden of production or proof, such as showing that you have been in loco parentis to the child, that the parents are unfit, or both, and possibly prove your case by clear and convincing evidence rather than the normal preponderance. You’d need to consult your state’s law to find out what a third party is expected to show and how to show it.If you are looking to upend an existing custody order, you may also be required to show over and above the “best interests” analysis some change of circumstances that will justify the court revisiting the case.⁶Notes:¹ Legal parentage may not be necessarily equivalent to biological parentage. Obviously, of course, where there is an adoption, a legal parent is not the biological parent, but there are other cases where paternity is determined by operation of law without a DNA test. See John Gragson's answer to Can you get sued for child support without a paternity test?² A counterclaim for custody may be filed but is not normally required as it is procedurally duplicative. Putting custody at issue, at least as between the parents, may lead to any result.³ This is the rub. There is substantial variation between states as to which third parties are permitted to seek custody in this manner, but there is constitutional precedent holding that there must be some restrictions on third-party custody as an infringement on the fundamental liberty to raise one’s own family. Troxel v. Granville, 530 U.S. 57 (2000). And not to have such a restriction would open the floodgates for any well-meaning (or not-so-well-meaning) person to randomly sue anyone for their children and suggest that the children would be better off with them instead of the parents.⁴ This is phrased this way to indicate that there is a positive burden on the third-party claimant to suggest that custody or visitation should be awarded to them, unlike the case between the parents where both parents are presumed to have rights to the child.⁵ For instance, in Pennsylvania there is a statute designed to prevent rapists from claiming custody of children produced by the rape, described in more detail in John Gragson's answer to Can a rapist claim the custody of his child from his victim? Murder of the other parent will also typically disqualify a parent from being able to assert custody.⁶ Again, this will vary state by state and perhaps case by case. Pennsylvania has no requirement of “material” change in circumstances, but in practice, you cannot just go to court and a month later petition for modification hoping for a different result; the judge is not going to be very happy with a litigant who does this sort of thing.