CHILD CUSTODY AND VISITATION
If you have started a Separation, Divorce or Paternity legal
action . . . and also have children, the most important decision facing
you is how your children will be cared for when you live apart from the
other parent. When you have children and end a relationship, your children's
relationship with their other parent continues. You will need to plan what
is best for your children.
This site has information you may find helpful in making
decisions. It also contains lists of resources that can provide some assistance.
However, no legal advice can be provided. You may wish to consult an attorney,
who could advise you as you deal with these decisions. If you wish to contact
an attorney, you may wish to contact one of the Lawyer
Referral Services. This site will cover the following topics:
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What Is A Fast Track Evaluation? (Under Construction)
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Where Can I Get Counseling For Myself Or My Children? (Under
Construction)
What is Child Custody?
Custody refers to the responsibility of caring for the children
and planning for their future. There are two different types of legal custody
and two different types of physical custody:
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Sole physical custody means that a child will live with and
be under the supervision of one parent the majority of time. In this type
of arrangement, it is common for the other parent to have visitation.
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Joint physical custody means means that each of the parents
shall have significant periods of physical custody. Joint physical
custody shall be shared by the parents in such a way so as to assure a
child of frequent and continuing contact with both parents.
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Sole legal custody gives one parent the right and the responsibility
to make decisions relating to the health, education and welfare of a child.
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In Joint Legal Custody, both parents share these rights and
responsibilities.
Either type of legal custody may exist with either type of
physical custody. However, even when one parent has sole legal or physical
custody, the other parent is entitled by law to information about the child
and his or her care, and "access to records and information pertaining
to a minor child, including, but not limited to, medical, dental, and school
records, shall not be denied to a parent because that parent is not the
child's custodial parent." (Fam.Code,
§ 3025.)
How do we make a custody plan?
It is best for the children and for the parents that parents
make their own agreement regarding the care of their children and not rely
on the court to make decisions for them. Parents can write up their own
plan for custody and file it with the court. A starting place for writing
your own agreement is the Judicial Council's form
custody order (form 1296.31A) that is designed to be attached to an
Order
After Hearing (form 1296.31) or a judgment (form
1287 [divorce]; form
1296.75 [paternity]). You may attach additional pages describing your
parenting plan to make it more detailed and as individual as you as parents
and each of your children need. Once you have developed a written parenting
plan you should file it in court to make it an official court order. To
make your agreement into an official court order, on the last page you
should create signature lines for each parent and for the judicial officer
to sign.
It is necessary for you to download and install the
free Adobe Acrobat viewer to access the Judicial Council forms from their
website. Click the image below to do so.
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If you and the other parent cannot agree on a parenting
arrangement, a judicial officer will make the final decision. The application
process most often used to obtain custody decisions in court is called
an Order to Show Cause. (See the topic of How Do
I Obtain Custody of My Children? on this webpage for further information.)
What Factors
Are Considered by the Court in Granting Custody?
In making custody decisions, the court always considers what
is in the best interest of the child. Under California law there is "neither
a preference nor a presumption for or against joint legal custody, joint
physical custody, or sole custody, but . . . the court and the family [have]
the widest discretion to choose a parenting plan that is in the best interest
of the child." (Fam.Code,
§ 3040.) In making a determination of the best interest of the
child, the court shall, among any other factors it finds relevant, consider
all of the following (see Fam.Code,
§ 3011):
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The health, safety, and welfare of the child.
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Any history of abuse by one parent against any child, the
other parent, a parent, current spouse or cohabitant, or a person with
whom they have a dating or engagement relationship. Before considering
allegations of abuse, the court may require substantial independent corroboration,
including, but not limited to, written reports by law enforcement agencies,
child protective services or other social welfare agencies, courts, medical
facilities, or other public agencies or private nonprofit organizations
providing services to victims of sexual assault or domestic violence.
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The nature and amount of contact with both parents.
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The habitual or continual illegal use of controlled
substances, or the continual or habitual use of alcohol. Before considering
these allegations, the court may first require independent corroboration,
including, but not limited to, written reports from law enforcement agencies,
courts, probation departments, social welfare agencies, medical facilities,
rehabilitation facilities, or other public agencies or nonprofit organizations
providing drug and alcohol abuse services.
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Which parent is more likely to allow the child frequent and
continuing contact with the noncustodial parent
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The court shall not prefer a parent as custodian because
of that parent's sex.
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If a court determines that an accusation of child abuse or
neglect made during a child custody proceeding is false and the person
making the accusation knew it to be false at the time the accusation was
made, the court may impose reasonable money sanctions, not to exceed all
costs incurred by the party accused as a direct result of defending the
accusation, and reasonable attorney's fees incurred in recovering the sanctions,
against the person making the accusation. For the purposes of this section,
"person" includes a witness, a party, or a party's attorney. (Fam.Code,
§ 3027.)
Custody should be granted in the following order of preference,
according to the best interest of the child (see Fam.Code,
§ 3040):
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To both parents jointly or to either parent. If to either
parent, the court shall consider, among other factors, which parent is
more likely to allow the child frequent and continuing contact with the
noncustodial parent.
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If to neither parent, to the person or persons in whose home
the child has been living in a wholesome and stable environment.
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To any other person or persons deemed by the court to be
suitable and able to provide adequate and proper care and guidance for
the child.
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Before making an order granting custody to a person or persons
other than a parent, without the consent of the parents, the court shall
make a finding that granting custody to a parent would be detrimental to
the child and that granting custody to the nonparent is required to serve
the best interest of the child. (Fam.Code,
§ 3041.)
No person shall be granted physical or legal custody
of, or unsupervised visitation with, a child if the person is required
to be registered as a sex offender under Penal
Code section 290, where the victim was a minor, unless the court finds
there is no significant risk to the child and states its reasons in writing
or on the record. (Fam.Code,
§ 3030.)
Does the
Court Usually Grant Visitation to the Parent Who Does Not Have Custody?
The court shall grant reasonable visitation rights to a parent
unless it is shown that the visitation would be detrimental to the best
interest of the child. In the discretion of the court, reasonable visitation
rights may be granted to any other person having an interest in the welfare
of the child.
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If a Domestic Violence protective order has been issued against
a parent, the court must consider if the best interest of the child requires
that any visitation by that parent should be in the presence of a third
party, specified by the court, or if visitation should be suspended or
denied. If supervised visitation is ordered, a parent may submit the name
of a person to supervise the visitation or the court may appoint a monitor
off an approved list. If a Domestic Violence protective order has been
issued, the visitation order must specify the day, time, place and manner
of transfer of the child, thereby limiting the child's exposure to potential
domestic conflict or violence and to ensure the safety of all family members.
If a party resides at a Domestic Violence shelter, or other confidential
location, the court will order the visitation transfer to take place at
a location which ensures the confidentiality of the shelter.
(See Fam.Code,
§ 3100.)
The court may grant reasonable visitation to a stepparent,
grandparent, or the children, siblings, parents and grandparents of a deceased
parent, if the visitation with any of these persons would be in the best
interests of the child.
If a Domestic Violence protective order has been issued
against a stepparent or grandparent, the court must consider whether the
best interest of the child requires that any visitation by the stepparent
or grandparent be denied.
(See Fam.Code,
§ 3101, 3103-3104.)
How Do
I Obtain Custody and/or Visitation of My Child(ren)?
If you have an already existing case, you must file your
request using that case number, in the courthouse where the file is located.
If you do not already have an existing case, a case must
be initiated in Superior Court. If you are married to the child's other
parent, this can be accomplished by filing a Petition
For Dissolution of Marriage, Legal Separation or Nullity of Marriage (form
1281) and a Declaration
Under Uniform Child Custody Jurisdiction Act (form MC-150). If you
were not married to the child's other parent, you must initiate the case
by filing a Petition
To Establish Parental Relationship (form 1296.60) and a Declaration
Under Uniform Child Custody Jurisdiction Act (form MC-150).
It is necessary for you to download and install the
free Adobe Acrobat viewer to access the Judicial Council forms from their
website. Click the image below to do so.
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If you and the other parent cannot agree on a parenting
arrangement, a judicial officer will make the final decision. The application
process most often used to obtain custody decisions in court is called
an Order to Show Cause. The process is described on the court's Order
to Show Cause webpage. Links to the Judicial Council forms involved
in the Order to Show Cause process are found there. If your case does not
also involve child support, spousal support, or attorney fee issues you
may ignore the description of the process and forms having to do with monetary
issues found on that webpage. If your case also involves support and/or
fee issues, you should follow the instructions on the Child
Support webpage but also fill out the portions of the application that
relate to child custody issues.
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One form that is not referred to there should be filed in
all child custody cases
If you ask the judicial officer to decide custody, you and
the children's other parent will be sent to parent education classes called
PACT
(Parents and Children Together). You will also be sent to the Conciliation
Court to try to work out an agreement with the assistance of a Family
Court Services Mediator. (Click those links for information on both of
these programs.)
If there has been violence or threats of violence between
you and the other parent, you may wish to view the court's
webpages on Domestic Violence.
Prior to setting a hearing date for custody, a Conciliation
Court date must be set. Once you have a Conciliation Court date, you
may file an Order
to Show Cause (form 1285), along with an Application
for Order and Supporting Declaration (form 1285.20). You will be given
a date, time and room number to appear. You must serve a copy of your application
for an Order to Show Cause and notice of the court hearing on the other
party not later than 21 calendar days before the court hearing. They have
a right to be present at the hearing to oppose your request. (This process
is described on the Order to
Show Cause webpage as well.)
At the OSC hearing, you may bring witnesses and/or provide
documentary evidence to support your position. The declaration of any witness
you intend to present should be served and filed along with your moving
or responding papers or the court might not let you present their evidence.
If you rely on the declarations or testimony of other witnesses, the other
party has the right to cross examine them. In all cases it is entirely
up to the judicial officer whether you will be allowed to present any live
testimony or whether s/he will decide the case on the written declarations
that have been filed.
After the hearing, if your request for custody is granted,
you will be directed to prepare a Findings
and Order After Hearing (form 1296.31) with attachments describing
the custody orders (Child
Custody and Visitation Order Attachment [form 1296.31A] and, if it
applies, Supervised
Visitation Order [form 1296.31A(1)]). This form must be submitted for
the court's signature. It is a good idea to prepare this form before you
come to the OSC hearing. This way the court can sign the order at the conclusion
of the OSC hearing instead of leaving you without written orders until
one can be prepared.
If the terms of custody are agreed to at the Conciliation
Court meeting, a stipulated order may be prepared and signed by both parties.
If this happens you may not need to proceed with the OSC hearing. (If you
are not going to proceed with the OSC hearing because you and the other
parent have resolved all issues, be sure to call the clerk of the department
[courtroom] in which your hearing is scheduled to let the court know that.)
If you wish to obtain child
support or spousal support (link under construction) you may request
it on the OSC form and have the hearing at the same time.
How
Do I Oppose a Request for Child Custody or Visitation?
If you have been served papers indicating a hearing for child
custody is set, you may wish to provide the court with information challenging
that request. You must complete a Responsive
Declaration to Order To Show Cause or Notice of Motion (form 1285.40).
This form must be filed directly in the courtroom where the OSC hearing
will be heard no less than seven calendar days prior to the hearing.
At the OSC hearing, you may bring witnesses and/or provide
documentary evidence to support your position. The declaration of any witness
you intend to present should be served and filed along with your moving
or responding papers or the court might not let you present their evidence.
If you rely on the declarations or testimony of other witnesses, the other
party has the right to cross examine them.
Can Custody
or Visitation Orders be Changed?
You may change a custody order or visitation order that was
made in the past. You must follow the same procedures as you did for obtaining
the original custody order. However, in order to maintain stability of
arrangements that have already been decided, whether by the court or by
the parents in an agreement filed with the court, and to prevent the constant
relitigation of children's custodial orders, state law requires that the
parent seeking to change an order must show that there has been a substantial
change of circumstances since the last order was made. (See the
discussion about modifying orders on the Order
to Show Cause webpage.)
Am I Entitled
to Compensation If The Other Parent Doesn't Follow The Custody Or Visitation
Order?
The court may order financial compensation to a parent when
the other parent fails to assume responsibility for care of the child or
when a parent is prevented by the other parent from exercising custody
or visitation rights which have been ordered by the court or by written
or oral agreement between the parents.
The compensation shall be limited to the reasonable expenses
incurred, resulting from the other parents failure to assume responsibility,
or from the other parent's thwarting of custody or visitation.
(See Fam.Code,
§ 3028.)