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Custody & Visitation

If parents cannot agree on a parenting plan for the children, the court will decide. The legal standard is always the child’s “best interest.” In California, it is public policy to ensure that children have frequent and continuing contact with both parents after parents separate or dissolve their marriage, or end their relationship. Child custody and visitation orders may be requested by either parent of a child.

If the parents were not married at the time the child was born, the Court cannot make any orders for custody, visitation or support until paternity is established. Paternity may be established by both parents signing a Declaration of Paternity form (CS 909) in the hospital when the child is born, or at a later date if the form is notarized and submitted to the Department of Child Support Services, or by opening a Paternity case with the court.

Definition of Legal Custody

Legal Custody determines which parent will make decisions about the child’s or children’s health, safety, education, and welfare.

  • Sole legal custody means that one parent has the right and responsibility to make decisions regarding the children’s school, doctors and general welfare.
  • Joint legal custody means that both parents share the decision making rights and responsibilities. They cooperate on decision-making.
Definition of Physical Custody

Physical Custody determines where the children will reside.

  • Sole physical custody means the children live with and are under the supervision of one parent and have visitation with the other parent as agreed upon by the parties or as ordered by the court.
  • Joint physical custody means the children reside with both parents. When parents have joint physical custody, each parent has significant periods of physical custody so that the child has frequent and continuing contact with both parents.
What is a Parenting Plan?

A Parenting Plan is a legal document that states the custody and visitation arrangements that the parents have agreed to. It can also be called a Custody and Visitation Agreement. A Parenting Plan is usually very detailed and sets consistent times for the child to be with each parent on a day-to-day basis, holidays and vacations. The plan needs to be in writing and signed by both parents, and their attorneys if they have one. The Court will review the plan, and will usually approve plans that have been agreed to. Once the Court signs the Parenting Plan it becomes a court order that is enforceable.

Some of the things to consider when you write your Parenting Plan are:

  • Where will the children go to school?
  • What kind of daycare do the children need?
  • What religion will the children be raised in?
  • Who will be the children’s primary medical and dental care providers?
  • Who will make decisions in cases of emergency?
  • How will information about the children be shared?
  • Do both parents have the right to call the children when they are in the care of the other?
Where can the other parent and I get help coming up with a custody and visitation
arrangement that we both can live with?

Whenever parents are not in agreement as to the custody and/or visitation of the children, it is required that a child custody mediation take place. This also applies if there is an order in place, and one of the parents wants to change the order.

Mediation can be scheduled at any time the parents wish, or will be automatically scheduled by the Court at the time one parent files papers that request that the Court make custody and/or visitation orders.

The mediation takes place with a professional mediator in the Family Court Services office. The mediator will assist the parents in reaching an agreement regarding the custody, visitation and parenting issues for their children. If the parents cannot reach an agreement, or reach only a partial agreement, the Court will address the issues still in dispute at the scheduled court hearing.

Do I need to file for a divorce or legal separation in order to get custody and/or
visitation orders?

No. You may file a Petition for Custody and Support of the Minor Children, if there is no other case that has been filed anytime, anywhere regarding the children of this relationship. You may file this type of case if you are married to the other parent, or if you are not married to the other parent and you have both signed a Voluntary Declaration of Paternity regarding each child. If you are married to the other parent and later decide that you would like a divorce or legal separation, you will have to file a new case and pay the filing fees for that case.

I have filed for divorce, do I have to wait until the divorce is final to get custody,
visitation and support orders?

Once a divorce, legal separation, nullity, or paternity case is opened with the court, you may proceed to establish child custody, visitation and support by filing the necessary paperwork. If parents are in agreement as to the orders, they may file a Stipulation with the court stating their agreement. Once a judge signs the agreement it becomes a Court order. If there is no agreement, you will need to file an Request for Order to obtain a hearing date where a judge will determine the appropriate orders.

I received papers asking the court to order custody and visitation for my child.
What can I do to make sure the court knows what I want?

You must file a Response to the papers if you want to have input into the Court’s decision. You should have received the papers necessary to respond in the packet of papers you received from the other parent. If you do nothing, the Court can make orders without hearing your side of the story. You can let the Court know that you agree to the requests made by the other parent or why you don’t agree with the requests.

You cannot bring up new issues in your response. You can answer to what the other parent requested and you can ask the court for an order different from what the other parent requested. If you have requests of your own, about different issues, you will need to file your own Request for Order.

Visitation of children

The parent who does not have the children more than half of the time is entitled to visitation with the children. In order to avoid conflicts and eliminate confusion, a specific visitation plan can be developed. The visitation plan may include specific weekends (the 1st, 3rd and 5th of each month,) the pick-up and drop-off times, and a schedule for holidays.

Supervised visitation may be ordered when the children’s safety and well-being require that visits with the other parent be supervised by another adult, or a professional agency.

In situations in which contact with a parent would be physically or emotionally harmful to the children the court may order that the parent be allowed no visitation with the children.

How to change (modify) a child custody order

Either parent can ask the court to change the custody and/or visitation orders if circumstances change. For example, if the educational needs of the child change, medical needs change, or if one parent wants to move away, the court orders may need to be changed.

To request that the Court change custody, visitation and/or support orders, one parent must complete the Request for Order forms and file them with the Court Clerk. The Court Clerk will set an appointment for the parents to attend mediation where a professional mediator will help the parties come to an agreement regarding the custody and visitation of their child, and will also set a hearing date. At the court hearing, the judge will review any agreements that may have been reached, and will consider the new circumstances and make a decision as to whether the child custody and visitation arrangements are to be modified.

If you are requesting a change in the support orders, you must also file an Income and Expense Declaration and attach copies of your last three pay stubs. You should also bring your most recent income tax return to the court hearing.

What if custody and visitation orders were made in another county or state
and I want to file a change in those orders?

If your case was filed in another county or state there are special laws that need to be followed. You may be able to move the case to Orange County and to hold a hearing in Orange County, but it is recommended that you seek legal advice regarding this complicated area of the law.

I feel that my children's father/mother may not be taking good care of them when
they are with him/her. How can I protect my child and still allow my child to visit?

You may file an Request for Order with the court asking that the other parent have “supervised visitation” with the child. This means that there must be another adult who is a friend, relative, or a professional visitation supervisor present any time the child is with this parent. The Court will decide if supervised visitation should be ordered, who will supervise the visits, how often the visits will take place, at what times, and who will pay if a professional supervisor is used.

The court ordered a child custody evaluation. What does that mean?

To help determine what is best for the child, the court may appoint a child custody evaluator to consider that health, safety, welfare and best interest of the child/ren with regard to custody and visitation issues. The child custody evaluator may interview the parents, children, grandparents, other relatives, or other parties to the case. The evaluator may also seek information from teachers, day care providers or medical providers. The evaluation could include reports written by mental health professionals, law enforcement agencies, drug and alcohol testing providers or reports from providers of anger management or parenting classes. You will be provided with a copy of the report once it is completed, however the report is confidential and should not be shared with anyone other than your attorney if you have one.

There are costs associated with a child custody evaluation. The Court will make orders as to which parent will be responsible for the costs or will divide the costs between the parents.

Will the court consider what my children wants when it makes a decision about
their custody and visitation?

The first concern of the court will always be the best interest of the child. Normally, a young person does not have the right to chose where they will live until they are 18 years of age. If the parents ask the court to decide where the child will live, the judge may consider the child’s wishes as one factor in making his/her order. If a judge learned that a child would rather live with one parent than the other, the judge might consider:

  • What is the reason the child wants to live with that parent?
  • What is the level of stability and reliability of the parent the child wants to live with?
  • What is the level of the child’s social maturity and emotional and intellectual development?
  • Has the child been pressured or manipulated into stating a preference?

Whether or not a judge will consider a child’s wishes is decided on a case-by-case basis. If you would like to make this request of the judge, you should first discuss this with your attorney if you have one. If you do not have any attorney, write the request in the forms that are filed with the court, and remind the judge of your request when you come to court for your hearing.

The other parent threatened to take the children and not tell me where they
will be. What can I do to keep this from happening?

In certain situations, where there is an emergency, you may ask the judge to make a Temporary Order which will be in place until a proper hearing can be held, this is referred to as an Ex Parte hearing. To do this, you must complete the Request for Order paperwork, including a declaration that tells the judge about the emergency, and give the other parent 24 hours notice that you will be asking the court to make Temporary Orders. The Family Law Court holds these emergency hearings everyday at 8:30 a.m., and you should try to be at the court at that time. However, if your situation can not wait, bring your paperwork to the Court and let the Court Clerk know that you have a special situation.

How do I give notice that I will be asking the court to make emergency temporary orders?

At least 24 hours before you file documents requesting emergency temporary orders, you must give the other party notice of the date, time, and place to appear if he/she wishes to object to the temporary orders you are requesting. You can give this notice in person or by telephone. If the other party has an attorney, you must give notice to the attorney. The 24 hours notice must be given unless you can establish that there will be immediate danger or harm if the other party receives notice of the request for temporary orders. In writing, you will need to explain to the judge why notice was not given.

© 2014 Superior Court of Orange County