Child Custody and Visitation in California

Child Custody and Visitation in California

By Allysyn Overton, Esq.

Understanding these different terms is important when navigating your court proceedings. Below are the definitions of each and how they are typically handled in court. There are two types of custody, which are different than visitation. People often misunderstand child custody and visitaiton. They may say “custody” when they really mean “visitation.” So, it is important to understand the legal terms of child custody and visitation before you start a child custody and visitaiton court case, so that you are asking for the correct child custody and visitaiton orders in your court documents and at your child custody court hearing.

Legal Custody

Legal custody refers to who has the decision-making power over the child(ren). What school is chosen, what pediatrician, glasses or contacts, etc. The parents can have joint legal child custody, or the court can award one parent sole legal child custody. Typically, courts want to see both parents involved in the decision-making for children, but exceptions, so will issue joint legal child custody orders. However, courts will consider multiple factors in deciding child custody, like a history of domestic violence, substance abuse, or other behaviors that render one of the parents incapable of engaging in joint legal child custody are common.

Physical Custody

Physical Custody refers to with whom the child resides. Like legal custody, parents can share joint physical custody, or the court can order that only one parent maintains sole physical custody. Typically, parties who share an even or close-to-even timeshare of the child(ren) will share in joint physical custody. When one parent has the majority of the timeshare, courts typically grant that parent sole physical custody. Physical custody does not have a whole lot of power like legal custody does, but can be useful in choosing a school, as the child’s residence will determine what school district is applicable. Physical custody also is important if one parent wants to move further away from the other. If the parent with sole physical custody wants to move, the court will usually side more with a parent who has sole physical custody when deciding whether the move-away is appropriate or not.

Visitation

Visitation refers to the timeshare of the child(ren) and parents, or how often the child will visit each parent and when. There are a number of common visitation scenarios:

2-2-3 visitation: The child visits parent 1 for two days, then switches to visit parent 2 for 2 days, then goes back to visit parent 1 for 3 days. This ends up creating an alternating weekend scenario. This visitation schedule is best for children under ten, as children of that age should not go too long without visiting the other parent. This visitation schedule looks like this:

2-2-3 visitation schedule

Monday Tuesday Wednesday Thusday Friday Saturday Sunday

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 1 Parent 1 Parent 2 Parent 2 Parent 2

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 1 Parent 1 Parent 2 Parent 2 Parent 2

2-2-5 visitation: with a 2-2-5 visitation schedule, the child visits with parent 1 for 2 days, parent 2 for 2 days, then parent 1 for 5 days. This visitation schedule is best for children over ten, as they do okay not having visitation with the other parent for several days at a time. This visitation schedule allows each parent to have full weekends, but also sometimes split their weekends with the other parent. This visitation schedule can sometimes make planning ahead hard, as the parents have to sit down with a calendar and mark out their visitation timeshare. It looks like this:

2-2-5 Visitation Schedule

Monday Tuesday Wednesday Thursday Friday Saturday Sunday

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 2

Parent 2 Parent 2 Parent 2 Parent 2 Parent 1 Parent 1 Parent 2

Parent 2 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 2

Week on/Week off visitation: A week on/week off visitation schedule is great for teenagers, as teens tend to do just fine going a full week without seeing the other parent, and do better with fewer transitions. With all of the activities keeping teens busy these days, many parents of teens, like this visitation schedule. Week on/week off visitation looks like this:

Week on/Week off Visitation Schedule

Monday Tuesday Wednesday Thursday Friday Saturday Sunday

Parent 1 Parent 1 Parent 1n Parent 1 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2

Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2

The 2-2-3, 2-2-5, and week on/week off visitation schedules are all used when the parties are ordered to have even timeshares. Absent a finding of domestic violence, substance abuse, or abandonment by one of the parties, courts will be inclined to order even visitation timeshare schedules. But what about situations where uneven visitation timeshare is appropriate? Just like with even visitation, there are a number of uneven visitation schedules courts can order.

Supervised Visitation

When a finding of any concerns about one of the parent’s parenting abilities, such as in cases of domestic violence, substance abuse, or not being in the child’s life much, the court may want to see that parent have a few supervised visitation sessions first. This ensures there is a responsible adult present for the visitation just in case the parent becomes inappropriate or abusive with the child(ren), the parent appears to be under the influence of substances, or the child experiences anything untoward during the visitation. That other adult can intervene if necessary and terminate the visitation whilst ensuring child safety. Then, that adult can report back to the court about how the visitations went. From there, the court can make further visitation orders. If the visitation supervisor reports back that the visitations all went well, the court will be inclined to order unsupervised visitation for that parent. However, if the visitation supervisor reports any concerns to the court, the court can terminate the visitation, order visitation or reunification therapy for the parent and child, or that the parent’s visitation maintain being supervised. Typically, the schedule of supervised visits is limited to the availability of the supervisor. Sometimes supervised visitation is ordered to be done by a professional visitation supervisor, and other times, the parties agree on a friend or family member to supervise the visitation. Supervised visitation rarely includes overnights, unless the overnights can take place at the visitation supervisor’s residence.

Every Weekend Visitation

This type of visitation is common as a next step after a parent has graduated from supervised visitation, or in cases where one parent cannot for whatever reason, have visitation during the week—perhaps their rigorous work schedule doesn’t allow it, or perhaps, the parties live too far apart for the child to make it to school in the morning. This visitation is usually not for a very extended period of time, as the other parent is not getting any weekend time at all.

Alternating Weekend Visitation

This type of visitation is also common as a step up from supervised visitation, or is ordered when one parent cannot have visitation during the week. This visitation ensures that both parents get some weekend visitation timeshare with the child(ren).

Visitation Exchanges

Visitation Exchanges is an important concept in any custody/visitation matter. Visitation exchanges refers to how the child(ren) is/are exchanges between the parents. In supervised settings, the exchanges takes place at the supervision center. If the visitation is being supervised privately, the exchange may take place at the supervised parent’s home. If the parties’ relationship is still relatively contentious, it might be best to have visitation exchanges take place in a public place. I worked on one case where the father was always twenty, even thirty minutes late to the visitation exchanges, but denied being late to the court. As a way to track whether he was on-time or late, the court ordered the visitation exchanges to take place at a starbucks between the homes, and each party had to buy something from inside and get a receipt. Then, the court reviewed all the receipts and noted that the father indeed had been very late to most of the visitation exchanges. Thus, the court ordered that if he was more than fifteen minutes late, he forfeited his visit.

School visitation exchanges is also a great and easy way for the children to travel back and forth. School exchanges have parent 1 drop off the child(ren) at school, and the parent 2 picks up that day from school. Keep in mind that this forces everyone to consider what the child(ren) should pack before school on visitation exchange days, as whatever the child(ren) need(s) for the other parent’s home will need to travel with him/her/them on exchange days. Parents often enjoy school visitation exchanges as they are a bit easier to fit into work schedules, and they mean not having to interact with the other parent as much, which is very helpful in contentious cases.

Holiday Visitation Schedule

Planning out a holiday visitation schedule is very important. Without one, you are stuck with whatever days fall on your regularly schedule visitation, no matter what holiday it happens to be. Common

holidays to consider are any days your child(ren) has off from school, important religious holidays, mother’s day, father’s day, and birthdays. California has a great court form that makes it easy for you to plan out a holiday schedule and request it from the court. This is form FL-341(c), and can be found here: https://www.courts.ca.gov/documents/fl341c.pdf

Visitation Mediation

In California, parties are required to attend mediation with the court’s own mediators to see if they can reach an agreement about visitation. The court will usually (absent any emergencies) not make any visitation orders until this is done. Remember, that you and the other parent know your lives and children better than a stranger in a black robe. In my experience, parties that reach visitation agreements end up having healthier and happier coparenting arrangements with the other, and tend to have an easier time in court. Of course, this is not always possible or even appropriate. For example, in situations of domestic violence. However, even then, the court will order you to attend mediation. In domestic violence cases, the mediator will meet with the parties separately. You should be willing to settle, but do not have to settle just for the sake of settling. The visitation terms should be something you can live with. They might not be exactly what you want, but a little compromise can go a long way. Settling also means less time in court and often fewer attorney’s fees.

To set up a free consultation with the author, visit https://calendly.com/legallyoverton/20min

Or email us at legallyoverton@gmail.com

HOW TO GET COURT ORDERS IN FAMILY COURT

Making Request in Family Court and Temporary Court Orders

When a married couple, or unmarried couple with children, decides to separate, the couple has many issues that must be decided.  Family court decisions often take months or sometimes even years. Some issues are heard on an emergency basis, such as domestic violence, or situations where the child(ren) could be at risk of harm. Property issues are usually the ones that are decided last, whereas, domestic violence, child custody and visitation, and child and spousal support are usually handled as soon as the court can hear them. Most of the time these orders are temporary orders until the final divorce judgment. At the time of issuing that, the court can change those earlier-decided, temporary orders, or keep them the same and incorporate them into the final judgment. Any post-judgment modifications to that judgment must be heard, after the other party is served personally, rather than electronically or by mail.  

Sometimes, a party can request a temporary emergency order before divorce papers are even filed.  The hearing will then be scheduled within days or weeks, depending on the nature of the request, and what is at stake.  These orders are called “temporary orders” and remain in effect until the court can make orders on formal divorce proceedings, or until the parties agree through mediation or negotiations. Although these orders are only temporary, courts often do consider them when making more permanent, formal court decisions, especially in cases of child custody and visitation or spousal support. If you are going to a hearing for a temporary order, be sure you are very organized and ready, as they are often short and will go by quite quickly. If you have your thoughts and arguments well-organized and outlined on notes for yourself, this will make your job much easier when under the short-time limitations.

Remember that all of the decisions made through temporary orders are not permanent. They are all only temporary, and subject to change. They are intended to maintain the family’s security and circumstances until more formal and steadfast family court decisions can be made.

Importance of Temporary Orders for Child Custody

If you are one of the many lucky people who are able to agree on child custody and visitation issues with your former partner, that is great, and will likely save you time, stress, hassle, and money. If you do reach an agreement at some point, be sure to get it in writing, and have both parties sign it, so the court knows that it is your true agreement, and so that it can be enforced if the other party tries violating it.

If you and your partner, like many others, cannot agree on these issues, don’t feel bad, seek the court’s help, as that is what it’s there for. Absent an emergency, like risk of physical harm, hearings for requests of orders like child custody are usually scheduled between six weeks and four months from the time you file. Without a court order, you have no way of enforcing any agreement or arrangement made with the other parent. This would allow the other parent to file false kidnapping charges against you, or take the child(ren) and not return them without a court order. This also means that you cannot call the police to help you enforce the order. With a court order, if the other parent violates the arrangement by not giving you the child(ren) at the right time, you can call a local police department and show them the order you want help enforcing. The police can then go to the other parent’s home and demand he/she/they follow the order and hand over the child(ren). So, request a court order as soon as possible. In CA, the form for doing this is called a “request for order” and is form number FL-300. However, if you’re not married, you’ll first need to establish Parentage, so other forms are required first. Most courts in California have a self-help center that will help you fill out your forms if you don’t have a lawyer. They cannot give you legal advice, but they can show you what forms you need for what purpose and how to fill them out and file them. If you file for custody and your spouse files a claim of kidnapping against you, the judge will see your custody request and the kidnapping claim can be dropped.

The following are common requirements for filing a request for a temporary order.  

• An Order to Show Cause or Request for Order. Also called an, “Application for Order to Show Cause,” this court form asks you to check off various boxes to indicate what you are requesting. It also puts the other parent on notice of the court hearing, as the clerk filing your request for order will write the court date, time, and location on the form for you.

• A supporting declaration. To the back of your Order to Show Cause/Request for Order, you should attach a written document, in which you state the facts of your case and your reasons for needed the requests you made. You can also have other people write declarations on your behalf, if they have firs-hand knowledge of the relevant facts. For example, if you want to show you’re a good parent, and you work from home, so the nanny sees your parenting every day of the week for several years, this would be a good person to write a declaration for you. Use specifics instead of general opinions, and be eloquent instead of offensive. For example, instead of “my ex is an alcoholic nunnybuns, who couldn’t parent if her life depended on it,” consider “During our marriage, Mother drank nearly every day, all day, and I cannot remember a time she was sober. She even drank around our child(ren), and before driving with the (child)ren in the car. On or around February 10, 2021, she was arrested for DUI, with the child(ren) in the car, and I was called to come get our child(ren), who were a crying mess, having just witnessed their mother being arrested and having been taken from her arms by strangers.” Whatever you do, do not lie to the court. This is called perjury. Not only is it a crime you can be arrested for, it can ruin your credibility for the rest of the proceedings, and the judge won’t believe anything you say after you are found to have committed perjury previously.

• A proposed temporary order giving you your requested relief. To submit this document, simply fill out the first part of a “findings and order after hearing,” or similar document, and write the word “proposed” on the top of the first page.” Do not check any of the boxes or sign it, as that is for the judge to do.

• A proof of service document. Have someone over 18, who is not a party in the case serve all of your pleadings as well as a blank response form, usually fl-320 in most cases. Then, that person should sign a proof of service, detailing the documents he/she/they served, the address, date, time, and way (personally, electronically, or by mail) in which they served, and then sign the bottom. If the court does not have this document, it cannot hear your matter, and will likely continue the hearing until such time as the other party is served. The documents need to be served at least 16 court days before the hearing. If you are unable to serve in time, don’t worry. Simply let the judge know and he/she/they should have no problem continuing (rescheduling) your matter. If you have questions about how to do this, or are worried you won’t be able to do it properly, you can hire a process server to handle this for you. Just google one near you, and go with the one you like. The process server will file the proof of service for you. If you are having trouble serving or even finding the other party for service, see my article on Residency in Divorce FAQs, which explains service by publication or posting. 

At the Temporary Order Hearing

 The hearing is the place for the judge to 

• Hear any testimony additional to what you wrote in your court documents.

• Briefly hear from any witnesses (though if you have a lot of witnesses or your witness testimony is very long, you should request a long cause or trial)

• Ask any questions of the parties;

• Hear the other party’s position; and

• Consider your financial circumstances and the state guidelines to come to a recommendation on child support.

 Often times your temporary order hearing will be sent to mediation or what is called “probation.”  Both of these present an opportunity for the parties to negotiate with a trained mediator or settlement master appointed or hired by the court, before the parties go before the judge. In California, mediation before a court hearing is mandatory. This saves the court time and allows more time to work out the conflicts.  Some courts are what is called “recommending counties.” This means that after mediation, the mediator can report back to the judge what happened and make recommendations to the judge on the orders he/she/they think appropriate based on what was revealed in mediation. So, it is important to be kind, civil, and respectful, but also firm on your concerns or facts during your session. If you would not say something to the judge, you probably should not say it to your settlement master or mediator.

 The issues that cannot be resolved in mediation probation are presented to the judge.  The hearing is usually only twenty minutes, fifteen in some counties, long. The judge will listen to both sides and the declarations of any witnesses. Be sure to speak slowly and clearly, and do not interrupt the clerk, judge, the other party/attorney, or any witnesses. Some judges only accept written evidence. Usually, the judge will make an order at the end of your hearing, but sometimes the judge needs more time to consider your matter, or wants to revisit some piece of evidence. When this happens, the judge will usually write the order and then mail it to the parties. If your issue is time-sensitive or an emergency, the judge will likely make the orders at the end of the hearing.   

 Any requests for child support, whether temporary or not, require both parties submit a declaration of income and expenses. In California, this form is FL-150. You are required to attach two months of proof of income, such as a paystub or profit and loss statement to this income and expense declaration. Again, be sure to be honest and do not underreport your income or overreport your expenses. If you do this, the court will assume you are getting the extra income from some other source, and can impute the difference to you as income.

 Sometimes, the judge decides that more information is needed to make an appropriate decision or that the other party was not given appropriate notice before the hearing.  In these cases, the judge might make a decision that is only effective until another temporary order can be held. 

 The temporary order includes any agreements the parties were able to make before the hearing, including agreements made in mediation or probation.  If the parties happen to come to a complete agreement during mediation or probation, then the judge will review that agreement.  Most of the time, the judge will accept these agreements, and sign them as the valid court order. Temporary orders, including agreements, are valid until the court issues a new order about that same issue or the parties enter a new agreement. If a temporary order is not changed by any subsequent order or agreement, it remains in full force and effect. Despite that the early orders are usually only temporary; the courts do consider these in making their final orders.   

To set up a free consultation with the author, visit https://calendly.com/legallyoverton/20min

Or email us at legallyoverton@gmail.com