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California Child Custody Procedure

One of the most difficult decisions that must be made during the divorce process is how custody of the children will be shared between the child's parents. Parents know their children best and can sometimes agree to a schedule for custody or visitation that they know will ease their child's transition during the divorce and be best for the child after the divorce. California child custody procedure can be a difficult, harrowing experience, which is why it's crucial to do your research first.

Parents will need to determine with whom the children will live and how the other parent will visit with the children. Oftentimes, parents are able to work out a mutually agreeable solution, known as a "parenting plan," for the custody of the children. If parents cannot reach an agreement on child custody themselves, the court can make a decision based on evaluating what is in the best interests of the child. Ultimately, the court will issue a custody order which will dictate how, when, and under what circumstances the parents of the child have custody or visitation rights with their child.

Making a Parenting Plan

If the parents choose to agree upon a parenting plan, the steps they will need to complete are the following:

  1. Fill out the appropriate court forms;
  2. Both parents must sign the stipulation (agreement), understand what they are signing and that they are not being forced to sign it;
  3. Have the forms reviewed by a family law facilitator at the court or by an attorney;
  4. Make two copies of the forms;
  5. Get the judge's signature on the stipulation;
  6. File the forms with the court clerk.

On the other hand, if the parents are unable to agree on a parenting plan and require court intervention, a custody order must be requested and obtained. This is done by opening a family law case with the court. Having an open family law case is required before requesting a custody order. The following types of family law cases can be started in order to request a custody order:

  1. Divorce, legal separation or annulment;
  2. Domestic violence restraining order;
  3. Petition for custody and support of minor children (this is for parents not wanting to get a divorce, legal separation or annulment);
  4. Local child support agency case; or
  5. Parentage (paternity) case;

See Working Together to Resolve Custody for more details.

Requesting Custody

Once a family law case is opened, one parent may request a custody order by completing the following steps:

  1. Fill out the appropriate court forms;
  2. Have the forms reviewed by a family law facilitator at the court or by an attorney;
  3. Make two copies of the forms;
  4. File the forms with the court clerk;
  5. Get the court date or mediation date from the court clerk (meeting with a mediator prior to the court date may be required);
  6. Have someone serve papers on the other parent at least 16 days prior to the court date;
  7. Have the person who served the papers fill out a proof of service and then file it with a court clerk;
  8. Go to the mediation and court date. The judge can then sign a custody order as appropriate.

Please note, that unless there is a signed court order from a judge, a parent does not have an enforceable custody order. It is important that a judge signs a custody order whether or not the other parent agrees to a parenting plan.

Contact a California child custody lawyer if you have additional questions about California child custody procedure or need legal counsel.

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