California Child Custody Procedure

One of the most difficult decisions during the divorce process is how to address custody of the children between parents. California child custody procedure can be a difficult, harrowing experience, so it's crucial to do your research first.

Parents know their children best and can sometimes agree to a custody arrangement or visitation schedule that will ease their child's transition during the divorce and be best for the child after the divorce. Often, parents can work out a mutually agreeable solution, known as a "parenting plan," for the children. A parenting plan may address custody, visitation (also known as parenting time), and a child support order. In these cases, the parents request that the court adopt their plan and make it the court order. 

If parents can't reach an agreement on child custody, the court can decide based on what is in the child's best interests. It will review factors related to the child's physical and mental health, safety, and welfare. It will consider any history of child abuse, domestic violence, or substance abuse by either parent. 

After hearing the evidence presented by the parties, the court will issue a custody order or visitation order. It will dictate how, when, and under what circumstances the parents have custody or visitation rights with their child.

Making a Parenting Plan

Until a family court issues temporary orders or final orders in a child custody case, both parents have the same rights toward their children. 

When parents agree on a parenting plan, the process will often take less time. It will follow a series of steps. These may include:

1. Meet, discuss, and agree on the terms of a parenting plan. This may include filling out the appropriate court forms. It may be aided by custody mediation or attorneys of the parents.

2. Both parents sign the parenting plan (agreement). They must understand what they are signing and do so willingly (without someone forcing them to sign it).

3. Have any appropriate court forms, such as the child custody affidavit and the agreement, reviewed by a family law facilitator at the court or by an attorney.

4. Make two copies of any forms and the agreement and file with the family court clerk to open the case.

5. Serve papers on each other or file a waiver of service. 

6. Request a hearing or otherwise follow court protocol to get a family court judge's review and signature approving the agreement.

7. The court files the final order containing the agreement with the clerk; a copy gets sent to the parties.

Contested Custody

If the parents cannot agree on a parenting plan, they must request and get a custody order. One or both parents may file an action to open a family law case with the court. 

Parents can start the following types of family law cases to request a child custody order:

1. Divorce (dissolution), legal separation or annulment

2. Domestic violence restraining order

3. Petition for custody and support of minor children (This is for parents not wanting to get a divorce, legal separation, or annulment)

4. Parentage (paternity) 

See Working Together to Resolve Custody for more details.

Requesting Custody

Once a family law case gets opened, either parent may request orders for custody, parenting time, and child support. The court process in a contested case will often take more time. It may involve evidentiary hearings over temporary orders and final orders. The steps to custody in a contested case may include:

1. The parents (or their attorneys) complete the appropriate court forms, such as the custody affidavit and a complaint or petition to open the case. The parents may file for whatever type of custody and parenting time arrangement they believe is in the child's best interests.

2. The parents may file for temporary orders from the court. This may need more forms, such as a financial affidavit or income and expenses.

3. The parents serve all filings on the opposing party. This may involve having someone serve papers on the other parent several days before the court date and having that person complete a proof of service and then file it with a court clerk.

4. Get or confirm notice for a mediation and court date.

5. Go to the mediation and court dates.

6. If the parents agree on a parenting plan during mediation, they may request a hearing or otherwise follow court protocol to get a family court judge's review and signature approving the agreement.

7. The parties or the court may request a custody evaluation. This can involve a report from an expert who interviews the parties or the children.

8. If they don't agree, the matter proceeds to a final contested hearing. At this hearing, each party will present evidence. The judge will consider the evidence and decide what is in the children's best interests. 

9. The judge will issue a final order or judgment determining each parent's custody and visitation rights. The court will send a copy to both parents.

You should know that a parent does not have an enforceable custody order unless there is a signed court order from a judge. A judge must sign a custody order whether the other parent agrees to a parenting plan.

Types of Custody Arrangements

Under California law, custody arrangements may revolve around distinct categories. "Joint physical custody" refers to a scenario where the child lives with both parents, dividing their time between households. Conversely, "sole physical custody" involves the child primarily residing with one parent. 

"Joint legal custody" grants both parents decision-making authority over the child's welfare, while "sole legal custody" vests this authority solely in one parent. Absent other circumstances, state law defaults to "joint legal custody," which is also called "shared parenting" or "co-parenting," as both parents can make important decisions for the children. 

Family courts in California prioritize the child's best interests, often tailoring custody plans to suit each family's specific circumstances. No matter the type of custody, the goal is to ensure the child's well-being and stability within the familial environment.

Legal Help From a Family Law Attorney

Seeking legal help from a family law attorney is crucial when navigating the complexities of the child custody process within California courts. 

An attorney can provide invaluable legal advice tailored to your specific situation. This will ensure you understand your rights and obligations under California's child custody laws. 

Whether you're embarking on a child custody case or trying to modify an existing arrangement, a knowledgeable attorney can guide you through the custody process. Don't hesitate to contact a California child custody lawyer near you.