CHILD CUSTODY AND VISITATION

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:

• What Is Child Custody?

• What Factors are Considered by the Court in Granting Custody?

• Does the Court Usually Grant Visitation to the Parent Who Does Not Have Custody?

• How Do I Obtain Custody of My Children?

• How Do I Oppose a Request for Child Custody?

• Can A Custody Or Visitation Order Be Changed?

• Am I Entitled to Compensation If The Other Parent Doesn't Follow The Custody Or Visitation Order?

• How Do I Help My Children Adjust To The Separation and/or Divorce?

• Do You Have Any Suggested Reading for Parents and Children of Divorce?

• What Is The PACT (Parents and Children Together) Program?

• What Is Mediation?

• What Is a Child Custody Evaluation?

• What Is A Fast Track Evaluation? (Under Construction)

• Where Can I Get Counseling For Myself Or My Children? (Under Construction)

What is Child Custody?

• 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.

• 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.

• Sole legal custody gives one parent the right and the responsibility to make decisions relating to the health, education and welfare of a child.

• In Joint Legal Custody, both parents share these rights and responsibilities.

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.

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?

•   The health, safety, and welfare of the child.

• 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.

• The nature and amount of contact with both parents.

•  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.

• Which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent

• The court shall not prefer a parent as custodian because of that parent's sex.

• 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.)

• 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.

 
• If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

• 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.

• 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.)

Does the Court Usually Grant Visitation to the Parent Who Does Not Have Custody?

• 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.)

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 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.

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.

• One form that is not referred to there should be filed in all child custody cases

 
• Declaration Under Uniform Child Custody Jurisdiction Act -- form MC-150

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?

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?

Am I Entitled to Compensation If The Other Parent Doesn't Follow The Custody Or Visitation Order?

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.)