Child Custody and Visitation
Remember: The way you and the other parent act affects your children. Here are some tips on how to talk to each other:
- Be polite, just like you would be at work. Do not use bad language or call each other names.
- Stay on the subject. Don’t talk about other issues.
- Focus on doing what is best for your child.
- Control your emotions, just like you would do at work. If you can’t stay in control, agree to talk at another time.
- Be clear and specific when you talk to the other parent. Write things down and keep businesslike records of your agreements and appointments. Do not change plans without first discussing the change with the other parent.
- To be sure each parent has the same information, write down what you have talked about and send a copy to the other parent.
- Keep your promises. Your children need to be able to trust and rely on you. This is very important right now.
- Do not talk about custody problems if one of you is under the influence of alcohol or other drugs.
- Do not talk about custody if the children are around.
- When you pick up or drop off the children to the other parent, say only "hello" and "good-bye".
- Do not send messages to the other parent with your child.
- Try to talk to teachers, doctors, or other involved professionals together. This can help resolve differences of opinion about what is best for your children.
- If the child is with you, you are responsible for the child’s daily care. But, do not make any important changes in the child's educational or medical care without first discussing it with the other parent.
- Above all, try to work with the other parent for the good of your children. Do this for your children's happiness and success in life. They will feel more comfortable and secure and know that you both cared enough about them to make their life free of conflict.
California law says that judges must keep the “best interest” of your children in mind when deciding on custody. California laws have changed a lot in the last few years. Courts no longer automatically give custody to the mother instead of the father, even if your children are young. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different, or minority lifestyle, religious belief or sexual preference.
In most cases, parents can make their own agreements for custody and visitation. If you and the other parent agree on custody, the judge will probably approve your agreement. If you cannot agree, the judge will send you to mediation and a mediator will help you. If you cannot agree, the mediator will recommend a parenting plan to court.
Remember: the best plan is a plan that is good for your children. Change is hard for children. Research tells us that if both parents are active in their kids’ lives and do not fight over custody and visitation schedules, the children will usually do much better.
There are 2 kinds of custody: legal and physical.
Legal custody means who makes the decisions about the children’s health, education and welfare. This includes deciding where the children go to school or whether they should get braces on their teeth. If the parents share joint legal custody, both parents can ask schools and doctors for information about the children. It is important to be clear about who makes which decisions so that there is no disagreement later on.
Physical custody refers to the time the children spend with each parent on a regular basis. For example, the children may be with one parent on school days and the other on weekends plus a mid-week dinner visit. The parents can split the holidays and vacation periods. Sometimes, if the parents live near each other and they get along as parents, the children go back and forth without an exact schedule.
Most parents need a schedule. Joint physical custody is a good choice for parents who can agree on a plan on their own or with a mediator’s help. It requires cooperation, flexibility and good communication between the parents. Sometimes, a judge gives both parents joint legal custody but not joint physical custody. This means both parents have equal responsibility for important decisions in the children’s lives. But, the children live with one parent most of the time. The parent who does not have physical custody usually has scheduled time with the children.
Parents should talk to a lawyer about physical and legal custody before making a final agreement.
To get or change a court order for custody or visitation, you must file forms at the Clerk’s Office. The forms you need depend on your situation.
- Are married to the other parent:
File a divorce or legal separation or a Petition for Custody and Support of Minor Children.
- Are not married to the other parent:
File a parentage action.
- Are not the biological parent and there is no existing family law court file about the children:
Talk to a lawyer. You may be able to file to start a guardianship case with the Probate Court.
- Are not a biological parent and there is a family law court file for the family:
See a lawyer to ask if you can join in that action. If there is no family law court file then you may have to file a new guardianship action or seek grandparent visitation.
- Have an existing Alameda County Department of Child Support Services (ACDCSS) case and paternity is established for the child(ren):
See a lawyer or Family Law Facilitator to start a parentage case to ask for custody and visitation orders or to ask if you can file in the DCSS case.
- Have an existing case, file papers to ask the court to change (or modify) court orders. It does not matter how old your case is.:
- Are filing to ask for a Restraining Order to protect you from domestic violence, you can also ask for custody and visitation orders. You cannot file to change orders in a restraining order case unless you filed the restraining order papers in a case to establish parentage or divorce/legal separation.
Parents who do not agree on custody or visitation MUST go to mediation. Call the Child Custody Mediation Services office to schedule a Parent Orientation and Mediation.
If you are filing a divorce or paternity action, you can:
Get help from a lawyer:
Ask a lawyer to help you or to represent you. To find one, look in the yellow pages of your phone book or call the Alameda County Bar Association referral service.
Do it yourself:
- Download the forms you need at the Judicial Council's Self-Help site free of charge. All you need is a computer with internet access. You can go to your public library or the Court's Self-Help Center to use a public access computer terminal. You may also go to the court Clerk's Office for family law and ask for forms.
- Buy a self-help legal book, or go to the Alameda County Law Library (http://www.acgov.org/law/index.htm) and borrow books at no charge. Make sure you use the most current version of the forms.
- Read the Court's Local Family Rules.
- Contact your local court's Family Law Facilitator's Office.
This section tells you about:
- What is and when to use a Request for Order (RO);
- Forms you will need; and
- How to file the RO forms.
What is and when to use a Request for Order (RO)
If you have an existing case or are ready to file a divorce/legal separation or parentage case, you can start by filing a Request for Order asking for the custody or visitation orders you want. These forms are in addition to the forms you need to start your divorce/legal separation or parentage case.
A Request for Order is a court order that tells the other parent (party) to come to court.
You can file at any time during your case -- even after your divorce is final. You can use a Request for Order to ask the Court:
- For your first custody or visitation orders
- To change the custody or visitation orders you have now
- To tell the other parent to contact Child Custody Mediation Services to go to Parent Orientation and Mediation
- For emergency custody or visitation orders (or to change the orders you have now because of an emergency situation)
If you want to file the Request for Order yourself, read the information on Forms below. Forms you will need:
If you are the one filing the Request for Order, you are the "moving party." Fill out these forms:
- Request for Order (Form FL-300)
If you need emergency custody, visitation or restraining orders, also file:
- Temporary Orders (Form FL-305).
You also need this form to give to the other parent:
- Responsive Declaration to Request for Order (Form FL-320) (leave blank for the other parent to fill out)
You can download all the forms you need to file a Request for Order for free. Please use the links in this section.
Fill out your forms neatly in blue or black ink.
You can also fill out your forms online using the Judicial Council website here.
Step 1: Fill out the forms
If you have an existing case, no matter how old, use the same case title and case number. The parent who was the "Petitioner" or "Respondent" in the old case will be called the same in the new filing. After you fill out your forms, make 3 copies (for you, the other party, and one extra). The original is for the court.
Step 2: File the forms
Take your completed forms to the local court Family Law Division and ask for a hearing date. If you need temporary orders for custody and cannot wait until your hearing, include the papers asking for temporary orders with the other documents. A judge will make a ruling on the temporary orders within 24 hours. You may have to give the other parent a copy of your papers first before the judge will make a ruling. When you file your forms, the clerk will ask you to pay a fee. If you don’t have enough money to pay the fees, ask the clerk for a fee waiver packet. Fill out the fee waiver forms and present them to the clerk with your other papers at the Clerk's Office.
Step 3: Serve the forms
You must serve the other parent with endorsed filed copies of the court forms at least 21 days before your hearing (or sooner if the judge says so).
You must have someone serve the other parent with copies of the forms you filled out and filed.
- Request for Order (Form FL-300)
- Temporary Orders (if you filed one) (Form FL-305)
- Declaration in Support of Ex Parte Declaration for Orders (if you asked for temporary orders)
The person who serves the other parent must also serve blank copies of these forms for the other parent to fill out:
- A blank Responsive Declaration to Request for Order (Form FL-320)
Remember: You cannot serve the papers yourself.
An adult (18 years of age or older) who is not involved in your case or a professional process server (you can find one in the telephone book) can serve the papers for you.
The person who serves the papers must complete a "Proof of Personal Service" (Form FL-330). The proof of service form says he or she has delivered the papers to the other party.
NOTE: Once the other party has been properly served, and you do not have a child custody agreement with the other parent, mediation is mandatory. Contact the Child Custody Mediation Services Office right away.
Step 4: File the Proof of Service:
File the original "Proof of Personal Service" with the Clerk’s Office as soon as possible and before your hearing. Bring a filed copy of the proof of service to your hearing.
If you can't file the proof of service before the hearing, bring the original plus 2 copies to your hearing.
Step 5: Go to your hearing:
Go to court early. Look for your name on the court calendar. The calendar is near the door outside the courtroom. Make sure your case is listed on the calendar. If it is not listed, and your papers say this is the right date and time, show your papers to the clerk in the courtroom.
Remember: bring copies of all papers in your case, your copy of the filed proof of service, and any other documents that support your case. If you have any witnesses, make arrangements to ensure they come, too.
Step 6: After the hearing:
After the hearing, any orders the judge makes must be written down on court forms