A custody determination may be sought by an original action for custody or by a Rule for Custody within a divorce or paternity lawsuit. An original action for custody only may be started by filing a petition for custody, i.e., a “Petition for Custody: Ordinary Proceeding.” The pleadings caption should be used to “flag” the Court’s attention to treat it as an ordinary proceeding. If there is already a pending ordinary action such as divorce, paternity suit, etc., a Rule for Custody may be filed as a summary proceeding within the ordinary proceeding.
When a custody action is instituted by a Petition for Custody, formal service and citation of the petition on the defendant is required (unless the defendant signs a waiver). Thereafter, the defendant is required to answer the petition within 21 days. If the defendant does not answer, the plaintiff may move for a default judgment. Obtaining the default judgment will require proof of prima facie case. If, instead, a custody rule is filed, the court will set a date for hearing of the rule, and the plaintiff must appear and prove the claim for custody at the hearing. The default procedures (reserved for ordinary proceedings) may not be used to obtain a custody judgment that is sought by a custody rule (summary proceeding). Some courts will require by local rule that ancillary matters be first set for a Hearing Officer Conference. It is best to contact the Hearing Officer’s office in the event there is a need to bypass the Conference or to make this request at the time of filing.