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EspañolStep 2: File and serve the custody complaint
The legal paperwork that starts a custody case is called a complaint. You may file your complaint in the family court or a court of a different name that hears custody cases. Generally, you can file in the county where the child lives or is physically present, or where either parent lives.1 There is usually a fee to file for custody, but if you can’t afford to pay it, you can file a “Petition to Proceed as an Indigent” with your custody complaint.2 See Is there a fee to file for custody? What if I can’t afford it?
The exact paperwork you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.
| If you and the other parent are… | Then you can usually file for custody in… |
|---|---|
| married and getting divorced | the divorce case. |
| married but not divorcing | a separate custody complaint. |
| not married | a separate custody complaint, but legal fatherhood (paternity) may need to be established first or during the custody case. |
Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, go to Who can get custody of a child?, Can a grandparent get visitation rights?, or talk to a lawyer.
The custody forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our North Carolina Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.
Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your complaint. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the
complaint and notify local authorities as needed. It may also be possible to file for a domestic violence protection order (“50B order”) and get temporary custody as part of the protection order.
After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.
1 N.C. Gen. Stat. § 50-13.5(f)
2 See Form AOC-G-106
