Almost 45% of US divorces involve children. Child custody and visitation are highly emotional issues that will deeply affect the family, including its physical, mental, and emotional well-being and the strength of its relationships.
Despite the importance of the questions decided in family court, seventy to seventy-five percent of California cases involve parties without lawyers. Legal costs for even a straightforward divorce exceed $20,000 per party. The income shock of divorces is severe. Twenty percent of bankruptcies are caused by divorce.
California courts have provided a set of forms to work from. While the forms are meant to be simple, they can be confusing to use. This article is meant to give background legal information and pointers that will help understand the forms. It is not intended as legal advice. If you need further help contact the Court’s Family Law Facilitator, visit the self-help center, or consult a family law attorney.
Before addressing custody documents, let’s review some legal principles.
Are there three types of custody?
There are two types of child custody in California: physical and legal. Physical custody establishes which parent a child lives with. Legal custody refers to who decides health, education, welfare, and similar issues. Physical or legal custody may be sole (under the control of one parent) or joint (sharing control). So there are four possible custody arrangements:
- Sole physical and legal custody;
- Sole physical and joint legal custody;
- Joint physical and sole legal custody;
- Joint physical and legal custody.
Factors included in the custody determination
Custody decisions in California are made based on the “best interest of the child.” Both parents have an equal right to custody under California law.
In determining the best interest of the child, the Court shall consider:
- The health, safety, and welfare of the child;
- The nature and amount of contact with both parents;
- Any corroborated history of child abuse or neglect;
- Any corroborated history of alcohol or drug abuse;
- Any corroborated history of violence against a parent, family member, or childcare provider.
These factors are statutorily required, but the Court may also consider others in determining custody.
Normally, a court will expect both parents to have a role in raising their children, despite the dissolution of their marriage. Sole legal and physical custody is reserved for very high conflict situations in which the parents cannot get along at all or where one parent is incapable of handling the responsibility.
Joint physical and legal custody is ideal for both parents and child if the parents are cooperative despite the issues that caused them to divorce. It Truly joint custody works best if parents have similar ideas about the child’s best interest and live near one another.
A common type of joint physical and joint legal custody is primary physical custody. This is sometimes considered a third type of custody. But it is not. It is simply a joint physical and legal custody arrangement in which the child lives primarily with one parent and the other has visitation rights.
Sole physical and joint legal custody is used when one parent is unable to provide regular supervision because of work, a living situation unfit for the child, or some other circumstance that makes it difficult for one parent to adequately provide care.
Joint physical and sole legal custody is generally limited to situations in which a child has special needs and one parent has a greater understanding of them because of training or experience.
There are two different sets of custody documents to consider, depending on whether a party has already filed a Petition for Dissolution, Separation, or Nullity (commonly referred to as filing for divorce), or not. However you seek custody, you will need to fill out a number of court forms. Be sure you do so accurately and completely. Take your time.
Filing a Petition for Custody and Support of Minor Children
Although it is certainly the most common situation, filing for dissolution, separation or annulment is not the only way to obtain custody orders. Another route is by filing a Petition for Custody and Support of Minor Children (form FL-260, available from the Court clerk or online.) The petition is appropriate only when custody is sought and:
- a Voluntary Declaration of Paternity (VDOP) has been filed or a court has previously decided paternity in a separate action.
A VDOP is a form from the Department of Child Support Services, available there or online here. It may also be available at your local hospital or County Recorder. The VDOP is subject to a number of restrictions related to doubts about paternity, surrogacy, and prior determinations of parentage. You can discuss these limitations with the family law facilitator or DCSS.
If you don’t fall into one of these categories, FL-260 is the wrong form to fill. If you do, check all boxes that apply to you to describe why you are using this form.
Filling out the form is self-explanatory. You will need to provide the contact and Court information requested, the names and ages of your children, and the other parent’s information. You will also need to march’s I boxes for the custody and visitation arrangements you want from the Court. If you cannot agree with the other parent, you will be sent to custody mediation, where a trained neutral will work with both of you to reach an agreement. Visitation arrangements should cover weekends, holidays, birthdays, and transportation. If you are requesting limits on travel, which should be covered. If there is a realistic fear of child abduction, the Court may make appropriate restraining orders on FL 312, prohibiting certain travel.
Keep in mind that the Court will normally try to equalize the time spent with each parent.
If you cannot agree on custody and visitation arrangements in mediation, the court will make orders that it believes will be in the best interest of the child. You may prepare requested orders regarding custody and visitation and form FL-312. However, the eventual court orders may not be what you want. It is better to agree on orders if possible.
In addition, to form FL-260, you will need to use form FL-210 (summons) and form FL-105, a Declaration under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This form is required by Family Code section 3429, which requires you to list the names, addresses, and birth dates of each child for the previous five years unless there is a domestic violence or abuse case and the addresses are statutorily confidential. You must notify the Court of proceedings in other courts or jurisdictions that may affect custody.
Domestic Violence Custody Orders
You can also obtain child custody orders without filing for dissolution if you are requesting a domestic violence restraining orders on form DV 100. You may request such orders if someone you are or were in an intimate relationship with is abusing or threatening to abuse you physically, emotionally, psychologically, or stalking or harassing you. If you had a child with that person, you may request new or modified custody orders as well as protective orders for yourself and your children. You can request custody orders by attaching court completed form DV 105. If you fear child abduction, you may request orders similar to those in FL-312 by filling out paragraph 13 of DV-105 and preparing proposed No Travel orders on DV 108 for the judge to sign.
DV-105 contains simplified versions of the information required by a declaration under the UCCJEA concerning your children’s residential history and any potentially related legal proceedings. It also allows you to indicate your desired custody arrangements.
You will also need to fill out the appropriate summons (DV 210) and be sure to use the right proof of service (DV 250). Domestic violence is a serious matter. The author recommends having an attorney or the family law facilitator look at your documents before their filing.
Custody orders in existing family law cases
If you file a petition for dissolution, legal separation, or nullity of your marriage or domestic partnership, (see FL 100) and there are minor children of the relationship, you must also file a declaration under the UCCJEA, as discussed above (See Family law form 105). You may also choose to file forms requesting custody, child support, spousal or partner support, visitation, child abduction orders, and orders about attorney fees and costs. You should attach a completed request for orders (FL 300) if you attach any of these forms to the initial petition. The information sheet for this form (INFO-FL-300) has an excellent checklist of forms you may wish to attach. Of course, you will also need a summons (FL 210) and proof of service (FL 250) at the initial pleading stage. After the initial petition is filed, FL 300 and attached forms can still be used with supporting forms and necessary evidence to request a noticed hearing on orders not yet made or needed changes to existing orders.
In rare instances, it is possible to obtain temporary emergency custody orders without legally adequate. This is only possible where a showing can be made of immediate loss or harm to a party, child or children, or property if proper notice is given. It is not designed to be a permanent solution. It is only designed to prevent harm when there is insufficient time for proper notice. Another hearing will be set to decide whether the temporary orders will be extended, or orders temporarily denied will be made after a full hearing.
Custody in a Paternity or Parentage Action
Custody may not be ordered until paternity or parentage has been established. You may bring an action to establish your parental rights or the respondent’s obligations. While it is possible for you to do so by filling FL-200, especially if a Voluntary declaration of paternity has been executed. But this is a very complicated area of the law. Declarations of paternity can be rescinded. Same-sex parents can argue they never intended to take on the responsibility of a child. Legal presumptions may establish paternity regardless of DNA tests. DNA tests can be attacked on technical grounds. You should not try to tackle this yourself: your Local Child Support Agency (part of DCSS) may bring a case for you. If they do not, the author strongly recommends you consult an attorney. If the paternity action is successful, the Court will make custody, visitation, and support orders.
Custody and Visitation by Stipulation and Order
If you are able to agree on custody and visitation, you can use FL-355 as a cover sheet for the judge to sign, making your appointment enforceable. Court order. Attached with details will be signed, completed copies of FL-341 along with attachments FL-341(A) through 341(E) if desired.
These attachments Cover supervised visitation, no travel orders, holiday schedules, legal custody, and physical custody. In fact, you need not use any of them if you can clearly explain your agreement in writing
There are a number of ways to establish custody child support orders in California. Though some raise common questions and sometimes require the same forms, each focuses on different issues and requires attention to detail. The court forms are meant to be straightforward but often are not. The author is convinced that reasonable agreements on custody issues are far superior to court decisions. Try to reach an agreement. If you can’t, make use of all resources at your disposal to achieve a good outcome for yourself and your children.