In order to get custody orders, you must file a Request for Order. This is done by filling out several forms, starting with form FL-300. The person asking for the orders is called the moving party. It does not matter if you are the Petitioner or the Respondent, either side may file a request for order. Depending on the other orders you are requesting there will be more forms to fill out.
Steps in the Custody and Visitation Process
The court can only make orders regarding the relief you are asking for in your Request for Order paperwork. It is very important to include all of the items for which you need the court’s assistance within your Request for Order. The Request for Order requires you to prepare a DECLARATION wherein you tell the court what you want, why you want it, and the legal reason your request should be granted.
Once you have completed the Request for Order (form FL-300) and attached the other necessary forms, it will need to be filed with the clerk and a date to have the judge hear your request will be set.
Anyone requesting custody orders must attend Child Custody Recommending Counselor Mediation Session. This mediation session is not optional. The goal of mediation is that the parents will come up with a parenting plan that is acceptable to both parties.
When requesting orders it is advisable to keep in mind that the court is mandated to make orders “in the best interests of the child”, but what are best interests? Best interests depend on the circumstances of each family. It is also a subjective concept, meaning each judge can have a different idea of best interest. When the parents cannot make a decision as to the best custody and visitation schedule, the court has to step in and make orders. The court will read each parties declaration, the judge may consider a written report or recommendation from child custody recommending counselor, and the judge may allow brief testimony. The judge will then make custody orders for your child. A child this judge has never met. Basically, a stranger is now in charge of determining how much time your child will spend with you. You need an advocate who is passionate about preserving your parenting time.
When it comes to custody issues you need an advocate who is passionate about preserving your parenting time. Contentious cases need extra attention, and an attorney experienced in calming frayed nerves and raw emotions. I take the time to understand your life, your history, your needs, and the needs of your child. I have represented hundreds of parents, and I know how to make sure your story is told. This is the most emotional area of family law and needs sensitive handling. Making a compelling argument to the court, while maintaining a respectful attitude in the court, takes experience and skill. While some litigators seem to believe that the loudest and arguments are the most effective, it is important to tailor litigation style to the judge hearing the argument. Loud arguments are great TV stuff but rarely the most effective way of gaining a favorable ruling.
Family code section 3020 expresses California’s public policy that to ensure the health, safety, and welfare of children, and to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolve their marriage or ended their relationship, and to encourage parents to share the rights and responsibilities of child-rearing in order to effect this policy, except where the contact would not be in the best interests of the child.
Physical custody has to do with the time the child is under the care of the parent. This extends to activities outside the home such as school, daycare, or extracurricular activities. The term “joint physical custody” does not mean that children’s time is shared equally with the parents. The amount of time each parent spends with the child can vary depending upon the situation. The court strives to allow equal time for each parent, but, jobs, location, the age of the child, the proximity of the home to school, and many other factors will affect the actual time each child spends with the parents.
Sole Physical Custody
Sole physical custody means that a child resides with only one of the parents and is under their exclusive care and supervision. The other parent then receives visitation.
Joint Physical Custody
Joint physical custody means that each parent has a significant amount of time with the child.
It goes without saying that parents reaching an agreement about custody and visitation outside the court often provides a much better arrangement for both the children and the parents. The court cannot possibly take the time to understand your particular family dynamics in the amount of time allotted to hear your case. Without an agreement, the parties are allowing a virtual stranger to make decisions regarding the time spent between parents and children.
Sometimes parties fighting for control end up losing sight of what is best for their child. Having a child brought into the dissolution or used as a means to an end only hurts the child. It is very important to have someone on your side helping you make these decisions, not only taking into consideration your feelings, and but also the feelings and needs of your child.
The court must look at the best interests of the child. Family code section 3010 provides that both parents are equally entitled to custody of the child and the mandate that the children should see both parents on a frequent and continuing basis.
California family code section 3011 provides that in making a determination of the best interests of the child the court shall, among other factors it finds relevant, consider any history of abuse by one parent toward another, any history of abuse by one parent toward anyone else, and any other evidence of abuse perpetrated by one of the parents. This means that the court takes into consideration any history of abuse by one parent against not only the child or at the parent but abuse in any other relationships.
Allegations of abuse are taken very seriously and have serious consequences. Any allegations of abuse need substantial credible evidence to support them. It is not enough to walk into the court and make allegations of abuse. There must be independent corroboration such as written reports by law enforcement agencies, child protective services, or other social welfare agencies.
Family Code Section 3010
(a) The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child.
(b) If one parent is dead, is unable or refuses to take custody, or has abandoned the child, the other parent is entitled to custody of the child.
Family Code Section 3011
In making a determination of the best interest of the child in a proceeding described in Section 3021 , the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
As a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, “abuse against a child” means “child abuse” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means “abuse” as defined in Section 6203 of this code.
(c) The nature and amount of contact with both parents, except as provided in Section 3046 .
(d) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code .
(e)(1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323 .
(2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.
California Family Code 3003
“Joint legal custody” means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
Orders Regarding Pets
In 2019, the legislature enacted a new statute. Known as “The Family Pet” statute. Many people, including me, regard our pets as family members. This new law allows courts to award “ownership” of pets in a judgment. Pets are deemed property.
There is no specific language that infers that the courts must issue “visitation” orders. The language “The court, at the request of a party…… may enter an order, prior to the final determination of the ownership of a pet animal, to require a party to care for the pet animal. It does not demand that ‘custody orders’ be made, only that the court may determine ownership, and order that one of the parties must care for. That does not mean that an argument for visitation cannot be made. I believe there is language in the statute to invite an argument for the court to make orders that both parties will jointly “own” and “care for” the pet and may make orders specifying when each party will have duties to care for the pet. The code also defines “pet animal” as being kept as a household pet.
I Know Many People Who Have Outdoor Pets, Are These Intended to Be Protected Also?
This statute also does not include specific language regarding “visitation”. However, the words, ‘not limited to’ may be used to give the courts the authority to assign specific periods of “care” to each party which could act as a visitation order. If you have concerns regarding your pets, contact our office to discuss your options.
Assembly Bill 2605
SECTION 1. Section 2605 is added to the Family Code, to read:
2605. (a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal. “Pet animal” means any animal that is community property and kept as a household pet. (b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.
(c) For purposes of this section, the following definitions shall apply:
(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.
(2) “Pet animal” means any animal that is community property and kept as a household pet.