There are numerous types of situations that may involve custody determinations
between parents and even nonparents (although nonparents typically need
to be joined into the action since they are not automatically parties
to their own child's divorce, for instance). These commonly include
divorce proceedings, legal separations, paternity actions, and domestic
violence applications. Guardianships involve custody but they are not
covered here.
California Courts have jurisdiction to issue initial temporary custody
awards, permanent custody awards, and to modify existing orders after
a final custody award has been entered.
Whenever custody is on the table, visitation is as well. Typically child
support is also at issue, although in order for a court to consider any
request the moving party (the party who filed first) sets "the menu"
for what the court can consider and make decisions about. The responding
party does not set the menu, and must file their own separate application
for orders to bring in new matters. It is imperative that a moving party
(the party making requests) check the correct boxes on the
FL-310 and the Notice of Motion or OSC cover sheet. The reason for this is to
ensure the other party receives 'due process,' meaning that they
have fair notice of what the hearing is about and a fair opportunity to
respond and to provide all relevant information in opposition.
Otherwise, if only the custody boxes are checked then any given court
may refuse to discuss finances. Different judges do it differently, but
it is important for you to do it right.
As a practical matter, in order to file for custody orders some underlying
action must be filed. This could include a DCSS or other governmental
application although you cannot control when and if that is filed.
Once the underlying action is filed, or together with it, a parent seeking
orders may file an Order to Show Cause or Notice of Motion. If you represent
yourself, you can obtain complete forms packets from your local court
clerk. That application must be accompanied by the FL-310 which tells
the Court what it is you want and why you want it.
While you can handwrite the evidence you want to give the court on the
FL-310, this is not a good idea. Better to set your information forth
on the attachments sheets. Even better to type it out and attach it.
If you are seeking child support (or spousal support) orders, you must
also submit a current Income and Expense Declaration which is California
Judicial Council form
which is
Form FL-150. It is important that answer all the questions on that form and provide
back up so you don't get scolded by a judge or have to return to court
another day.
These papers must all be served on the opposing party, in person if this
is the first filing and they have not yet responded in the action (notice
of ex parte applications can be given orally, but there must be a proper
personal services thereafter).
Be sure that you serve all the papers you want the court to consider. Do
not expect that you can show up in court with new matters and evidence
and just hand them to the judge. Procedural due process requires the other side get everything in time
to respond. In addition, many judges will just refuse to consider untimely
pleadings or defectively served documents - although, if for reasons beyond
you control this happens to you (something new happened) - request a continuance
at your first hearing so the other party gets their time to respond.
I address the actual issues regarding temporary custody and ex parte applications,
permanent custody, and modification of custody in another blog. I will
link back when those articles are done.
What more information about child custody and visitation rights and disputes
in California?
T.W. Arnold
