Child Custody

California law says that judicial officers must keep the "best interest" of your children in mind when deciding on custody. California laws have changed a lot in the last few years. Courts no longer automatically give custody to the mother instead of the father, even if your children are young. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different, or minority lifestyle, religious belief or sexual preference.

In most cases, parents can make their own agreements for custody and visitation (parenting time). If you and the other parent agree on custody, and you have an existing Family Law case, then you can mediate and write up a parenting agreement with Family Court Services. The judicial officer will review your agreement. Family Court Services offers mediation services at no cost to parents who want to resolve custody or visitation disputes without filing for a court hearing. This is called an "informal mediation" and can be scheduled by calling Family Court Services at (657) 622-6196 for an appointment. If you and the other parent do not have an agreement, then the judicial officer will send you to mediation and a mediator will help you. If you still cannot agree, you and the other parent will have to attend a court hearing.

Remember: The best plan is a plan that is good for your children. Change is hard for children. Research tells us that if both parents are active in their kids’ lives and they do not fight over custody and visitation schedules, the children will usually do much better. Family Court Services has developed a helpful Parenting Plan Guideline.

Types of Custody:

There are 2 kinds of custody: Legal and Physical.

LEGAL CUSTODY:

Legal custody refers to who makes the decisions about the children’s health, education and welfare. This includes deciding where the children go to school or whether they should get braces on their teeth. If the parents share joint legal custody, both parents can ask schools and doctors for information about the children. It is important to be clear about who makes which decisions so that there is no disagreement later on.

PHYSICAL CUSTODY:

Physical custody refers to the time the children spend with each parent on a regular basis. For example, the children may be with one parent on school days and the other on weekends plus a mid-week dinner visit. The parents can split the holidays and vacation periods.

Sometimes, if the parents live near each other and they get along as parents, the children go back and forth without an exact schedule. Most parents need a schedule.

Joint physical custody is a good choice for parents who can agree on a plan on their own or with a mediator’s help. It requires cooperation, flexibility and good communication between the parents.

Sometimes, a judicial officer gives both parents joint legal custody, but not joint physical custody. This means both parents have equal responsibility for important decisions in the children’s lives. But, the children live with one parent most of the time. The parent who does not have physical custody usually has scheduled time with the children.

To get more help in forming a child custody and visitation plan, you may view the Family Court Services Parenting Plan Guideline.

Change a Court Order for Custody or Visitation

To get or change a court order for custody or visitation, you must file forms at the Clerk’s Office at the Lamoreaux Justice Center. The forms you need depend on your situation. Generally, if you already have an existing case opened, then you may file paperwork to set the matter for a hearing. Please see the section below titled, "How to File a Hearing for Custody and Visitation." If you do not have a case opened yet, please visit the Parentage page or the Ending Your Marriage page.

How to Fill Out Your Court Forms

If you are filing a new case, you can:

DO IT YOURSELF:

• Self-Help Centers: You may pick up free forms at one of our Self-Help Centers or attend a free workshop on how to start your Divorce or Paternity Case. For information on workshops, please view the Self-Help Center’s workshop webpage.
• Download the forms you need at the State’s Self-Help Website for free. All you need is a computer with internet access. You can go to your public library or the Self-Help Center to use a public computer.
• Buy a Self-Help legal book, or go to the Orange County Public Law Library or Self-Help Centers and borrow books at no charge. Make sure you use the most current version of the forms.
• Read the Court’s Local Family Rules.

GET HELP FROM A LAWYER:

Ask a lawyer to help you or to represent you. To find one, look in the yellow pages of your phone book or call the Orange County Bar Association.

FOR ADDITIONAL HELP: Visit either the Parentage page or the Ending Your Marriage page.

How to File a Hearing for Custody and Visitation

If you have an existing case or you are also starting a new case, you file paperwork to set a hearing for custody and visitation. This is called a Request for Order.

A Request for Order is a court order that tells the other parent (party) to come to court. You can file at any time during your case -- even after your divorce is final.

You can use a Request for Order to ask the Court:

• For your temporary custody or visitation orders
• To change the custody or visitation orders you have now
• For emergency custody or visitation orders (or to change the orders you have now because of an emergency situation). Note: You will need to file additional forms to the basic Request for Order forms for an emergency order

FORMS YOU WILL NEED:

If you are the party requesting orders, then fill out forms:

• Request for Order (FL-300)
• Optional: Child Custody and Visitation Application Attachment (FL-311)
• Optional: Declaration (MC-030)
  • If you are writing a declaration, you may view the following demonstration for help: Writing a Declaration to support your Request for Hearing

  If you need emergency custody, visitation or restraining orders, also file:

  • Temporary Orders (FL-305)
  • Declaration Re: Notice (L-1124)

  You also need to have these forms served on the other party along with the filed forms and attachments:

  • A BLANK Responsive Declaration to Request for Order (FL-320)
  • A BLANK Proof of Service by Mail (FL-335)

  HOW TO FILE THE REQUEST FOR ORDER FORMS:

  Step 1: "Request for Hearing"

  If you have an existing case, no matter how old the case is, use the same case title and case number. The parent, who was the "Petitioner" or "Respondent" in the old case, will be called the same in the new filing.

  After you fill out your forms, make 2 copies of your original (one for you, one for the other party). You will file the original document with the Court.

  Step 2: File the forms

  Take your completed forms and 2 copies to the Clerk’s office and ask for a hearing date.

  When you file your forms, you may be required to pay a fee. If you do not have enough money to pay the fees, ask the clerk for a fee waiver packet. Fee waiver forms can also be accessed online.

  The Clerk will stamp your copies and certify your Temporary Orders if you have any.

  Step 3: Serve the forms

  REMEMBER: Court papers must be served by someone over the age of 18 who is not a party to the case or by someone who is a professional Process Server. If the person you are trying to serve has an attorney in the case, you will serve the attorney if a judgment has not already been entered. Service can be done by mail or in person.

  Personal Service requires at least 16 days before your hearing (or sooner if the Judicial Officer says so).

  Service by mail requires at least 21 days.

  If the person does not live in California or is incarcerated, visit a Self-Help Center.

  After serving, the person who serves the papers must sign a completed Proof of Personal Service (FL-330) or Proof of Service by Mail (FL-335). If you used SmartForms, it will be submitted electronically. Otherwise, you need to file it at the Lamoreaux Justice Center.

  The forms that must be included to serve are:

  Any Additional optional attachments:

  • Temporary Orders (FL-305) (if you filed one)
  • Declaration Re: Notice (L-1124) (if you filed Temporary Orders)
  • BLANK Responsive Declaration to Request for Order(FL-320) [NOTE: must serve a blank copy of the FL-320 for the other parent to fill out]

  Step 4: File the Proof of Service:

  File the original Proof of Personal Service with the Clerk’s Office as soon as possible and before your hearing. Bring a filed copy of the proof of service to your hearing.

  If you cannot file the proof of service before the hearing, bring the original plus 2 copies to your hearing.

  Step 5: Go to Your Hearing:

  Come to Court early. Look for your name on the court calendar. The calendar is near the door outside the courtroom. Make sure your case is listed on the calendar. If it is not listed, and your papers say this is the right date and time, show your papers to the deputy inside the courtroom or go to the Clerk Office.

  NOTE: Bring copies of all papers in your case, your copy of the filed proof of service, and any other documents that support your case. If you have any witnesses, make sure they come.

  Step 6: After the Hearing:

  After the hearing, A minute order is prepared by the court clerk. If you need to file a formal order, you will use the minute order to prepare a Findings and Order After Hearing (FL-340).