Sunday, September 21, 2014

Child Custody / Visitation

Types of Custody / Visitation Orders

Custody of Children

Legal Custody:
Legal custody determines which parent will make decisions concerning the child's or children's health, safety, education, and welfare. One parent can make these decisions alone, which is known as sole legal custody, or both parents may retain the right to make these decisions, known as joint legal custody. Joint legal custody means both parents should cooperate on decision-making, but that either parent has the power to make decisions alone. Sole legal custody means only one parent can make decisions and obtain information from the child's or children's school and doctor, for example.
Physical Custody:
Physical custody determines where the child or children will reside. Sole physical custody means the child or children live with one parent and may visit the other parent. Joint physical custody means the child or children reside with both parents. In the case of joint physical custody, if one parent will have the child more than half of the time, then that parent can be labeled the primary custodial parent for tax and other purposes.

Visitation of Children

Unsupervised Visitation:
The parent who does not have the child or children more than half of the time is entitled to visitation with the child or children. Visitation plans should be specific in order to avoid potential conflicts and eliminate confusion. In developing a specific visitation plan, keep in mind that it can be helpful to be specific about which weeks of the month the visits will occur to make the plan more enforceable. For example, if a parent will have the child or children every other weekend, it would be helpful to define that specifically as the 1st, 3rd, and 5th (or the 2nd and 4th) weekend of the month. The pick-up and drop-off times may also be specific, such as Friday at 3:00 p.m. to Sunday at 6:00 p.m.
Supervised Visitation:
This option is used when the child's or children's safety and well-being require that visits with a parent be supervised by the other parent, another adult, or a professional agency.
No Visitation:
This option is used in extreme situations in which contact with the parent would be physically or emotionally harmful to the child.

Residential Requirements

If you do not have a case for custody and visitation filed in any court, you may file in Sacramento County only if the child has resided in California for the past six months and currently resides in Sacramento County. If a custody case has already been filed in another state or county, contact that court for information about modifying the orders or moving the case to Sacramento County.

Before considering any of these actions, it is recommended that you seek legal advice regarding this very technical area of the law.

Married Parents - Custody / Visitation Orders

Married parents who wish to obtain custody or visitation orders must first open a family law case, usually for dissolution of marriage (divorce). Married parents who do not wish to file for divorce, may also obtain custody orders in a legal separation or nullity case. The family court cannot make custody and visitation orders until a family law case has been filed.

Unmarried Parents - Custody / Visitation Orders

Unmarried parents who wish to obtain custody or visitation orders must first open a family law case, and, if parentage has not been legally established, must first establish legal parentage of the child or children. This is done by filing a parentage case under the Uniform Parentage Act (UPA). The family court cannot make custody and visitation orders until a family law case has been filed.

Custody / Visitation Orders Without Filing for Dissolution, Legal Separation, or Parentage

The Petition for Custody and Support of the Minor Children is used in very limited circumstances. You may only use this method of obtaining custody and support orders if there is no other case that has been filed anytime, anywhere regarding the children of this relationship. You may file this petition if you are married to the other parent and do not wish to file for a divorce, legal separation, or nullity, or you are not married to the other parent and you and the other parent have signed a Voluntary Declaration of Paternity regarding each child. Be aware that if you are married to the other parent and later decide that you would like a divorce, legal separation, or annulment, you will have to file a new case and pay another filing fee.

The forms used to start a case are in the following packet:

Documenting Custody and Visitation Problems

If you are experiencing child custody and visitation problems because the other parent is not following or cooperating with the current orders, you have options. We recommend that you review our instructions on Documenting Custody and Visitation Problems.

Orders - Requesting Court Orders

After the appropriate type of case has been filed in court, you may proceed with filing the necessary paperwork to obtain orders to establish child custody, visitation and/or support. To request a hearing to establish or modify child custody or visitation, you must file a Request for Order.

Grandparent Visitation

A Complaint for Grandparent Visitation is used by a grandparent who wants to visit his or her grandchild(ren), but one or both parents are not permitting the visitation to occur.

Completing a Petition for Joinder (Person)

A Petition for Joinder is used when a non-parent wants to participate in a Family Law case in order to get child custody or visitation orders. The forms used are included in the following packet:

Child Custody Recommending Counseling / Evaluation / Confidential Mediation

For custody mediation or evaluation information, please see Child Custody Recommending Counseling, Family Court Services, Confidential Mediation, and Evaluation..

Emergency / Temporary Orders

In family law cases, court orders can be obtained only after the appropriate paperwork is filed, a hearing is scheduled, and notice of the hearing is served on the other party allowing him/her sufficient time to file a response. These hearings occur in open court in front of a judge. In limited situations, where there is an emergency, the judge may grant a Temporary Order to be in effect only until the hearing in open court. A Temporary Order is only issued when irreparable harm will result if an order is not made before the hearing.

To obtain a temporary order, you must give the other party notice that you are requesting an emergency temporary order(s). This notice must be given by 10:00 a.m. on the court day before you plan to file your documents with the court. You must tell the other party the date, time, and place to appear if he/she wishes to object to the temporary order(s) you are requesting. This notice must be given in person or by telephone. If an attorney represents the other party, the notice must be given to that attorney. Ex partes shall be noticed and heard in the appropriate department as indicated below:

Department Use the last two (2) digits of your case number to determine the department.
120 81, 83, 85, 87, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99
121 05, 15, 25, 35, 45, 55, 65, 75, 06, 16, 26, 36, 46, 56, 66, 76, 86
122 01, 11, 21, 31, 41, 51, 61, 71, 02, 12, 22, 32, 42, 52, 62, 72, 82
123 07, 17, 27, 37, 47, 57, 67, 77, 08, 18, 28, 38, 48, 58, 68, 78, 88
124 09, 19, 29, 39, 49, 59, 69, 79, 00, 10, 20, 30, 40, 50, 60, 70, 80
125 03, 13, 23, 33, 43, 53, 63, 73, 04, 14, 24, 34, 44, 54, 64, 74, 84

The notice must be given in all cases unless it is established that there will be an immediate threat of danger or harm if the notice is given. This can be established only in rare cases. It is the general policy of family law courts that judges do not make temporary orders unless both sides have the opportunity to be heard.

Ex Parte Emergency Family Law Temporary Hearings are heard at 8:30 a.m. Monday through Friday,(excluding holidays), in the appropriate family law departments as indicated above.

Ex Parte Emergency Family Law Temporary Orders Packet