Episode 19

Does Filing First in a Custody Case Give You an Advantage?

North Carolina family law attorney Jana Jones explains whether filing first in a custody or divorce case actually gives one parent an advantage. She breaks down when it might matter, how courts really decide custody, and why timing your response is more important than racing to file first. Jana also shares what mistakes dads should avoid early in the process—and why waiting too long to act can hurt your case.

What role does filing first play in custody and divorce cases?

According to Jana, filing first rarely determines the outcome of a divorce or custody case. Courts in North Carolina don’t prioritize who filed first when making decisions about custody, child support, or property division. Instead, they focus on equitable distribution, alimony, and the best interest of the child.

She explains that the spouse requesting alimony is usually the one who files first since they’re asking the court to issue an order in their favor. On the other hand, equitable distribution involves dividing all assets and liabilities acquired between the date of marriage and separation — regardless of whose name they’re in. So, while there may be instances where filing early helps move things along, the court doesn’t decide “who gets what” based on who filed first.

When can filing first be beneficial in custody disputes?

Jana notes that filing first can sometimes be beneficial in custody cases. It signals to the court that a dispute exists and that a parent is ready to resolve it legally. However, the court’s “polar star” in custody cases is always the best interest of the child.

For example, if one parent already has custody by default and isn’t allowing visitation, the other parent must file to gain custody or visitation rights. Filing first in this case doesn’t automatically mean the court will change custody, but it gets the issue in front of a judge sooner.

Why do timely responses matter more than who files first?

Jana emphasizes that what matters more than who files first is how the other parent responds. In North Carolina, the responding party (the defendant) has 30 days to file an answer to the complaint after being properly served. They can also request a 30-day extension, giving them up to 60 days total.

She reminds parents that the clock starts when they are officially served, not when the other party files the paperwork. Missing deadlines can affect a case more negatively than filing second.

How should parents strategize their custody case response?

When responding to a custody complaint, Jana explains that the first step is to prepare an “answer.” This document goes through each paragraph of the complaint and admits or denies the statements. Afterward, the responding parent can file a “counterclaim” to state what they want from the court — such as custody or child support.

While every case is unique, this two-part process allows both parents to outline their position and ensures the court hears both sides fairly.

What are common misconceptions about filing first?

Many people believe that filing first gives them a strong upper hand, but Jana clarifies that the court bases its decision on the child’s best interest — not the order of filing. In custody cases, the judge evaluates stability, caregiving, and the child’s needs rather than which parent filed first.

She stresses that filing first might give a slight procedural benefit but has no influence over the court’s ultimate decision.

Should fathers consider filing first?

For fathers who are being denied time with their children or struggling with uncooperative co-parents, Jana encourages filing as soon as possible. Waiting too long can leave fathers stuck in unfair arrangements. Filing early is often the first step in reclaiming their time and ensuring they play an active role in their child’s life.

As Jana puts it, children need both parents, and if one parent is blocking access, it’s important to take legal steps quickly.

Do courts favor mothers who file first?

Jana addresses another misconception — that mothers gain an advantage just by filing first. In her experience in Mecklenburg County, judges are fair and focused on one thing: the best interest of the child. Courts don’t lean toward one parent over the other based on gender or who filed first.

Their responsibility is to create a custody schedule that supports the child’s stability and well-being, not to reward whoever filed first.

What is the biggest mistake fathers make in custody cases?

Jana identifies the most common mistake fathers make: waiting too long to take action. Many fathers delay filing because they don’t want to “take the child from mom,” especially in the early years. But as time passes, it becomes harder to change an established custody arrangement.

She explains that courts value stability. If a child has lived primarily with one parent for years, judges are less likely to disrupt that routine unless there’s a clear reason — such as neglect or harm. Jana urges fathers to stand firm early on and pursue custody or visitation rights as soon as possible.

What’s the final takeaway for fathers?

Jana concludes that filing first can help initiate the process and show initiative, but it doesn’t determine the outcome of a custody case. What truly matters is acting promptly, responding within deadlines, and focusing on the child’s best interest.

Fathers who want to play an active role in their children’s lives should seek legal advice early, file when necessary, and never wait too long to assert their rights.