Divorce happens, and children are often involved in the process. For parents that are going to file for divorce, the children will be the most important variable to carefully consider. Who will the children live with? How close to both parents will they be? What happens if one of the parents moves out of the area? Will the custody be split evenly or not? Who will pay child support? What about education? Tax deductions? There is a lot to think about….
This article does a very good job of laying out basic California child custody laws.
Parents Who Separate or Get Divorced
In California, parents can seek a legal separation or a divorce. In either scenario, parents can ask the court to make child custody orders. With a divorce, for example, a parent can ask the family court to issue temporary child custody orders while the divorce is still pending in the courts, and once the divorce is finalized, the court can issue permanent child custody orders, which can be modified if the need arises.
When parents split and they have minor children, they must develop a plan that outlines how exactly their children will be cared for, and where they will spend their time. In California, this plan is called a “parenting plan,” but it is also referred to as a “time-share plan” or an “agreement.”
You and your spouse know your children better than anybody else. Obviously, very young children and teenagers may have different needs, and no judge will be able to know your children’s needs the way you do.
For these reasons, the family courts encourage parents to put their heads together and create a parenting plan that is tailored to their children’s individual schedules and needs.
After you split with your spouse, your children may be going through a difficult time. That being said, you want to be open with your children and give them a lot of love and understanding during this time of transition.
Many children go through anger and grief during their parents’ separation. If your child displays any of the below behaviors, please understand that it is normal and should improve with time.
- Depression – children may experience grief and overwhelming sadness, especially initially, but this too subsides with time;
- Blaming themselves for the divorce;
- Shock that their parents are divorcing;
Strong feelings of anger and resentment towards the parents;
- Trying to bargain with their parents to get back together; and
- As time passes, children begin to accept the divorce.
Once you have decided to divorce, you will need to ask the court for a child custody order. How you go about obtaining a child custody order will depend on whether you already have a family court case or you’re starting one for the first time.
Asking the Court for a Child Custody Order
If you are married to your spouse or in a registered domestic partnership, you can ask for a child custody order in one of the following cases: 1) annulment, 2) legal separation, 3) divorce, or 4) domestic violence restraining order.
Assuming you are married or in a domestic partnership, you will more than likely ask for a child custody order as a part of your divorce case. In this scenario, you would open the divorce case and ask for temporary orders for child custody and visitation while you’re waiting for the final divorce.
If you and your spouse have an open divorce case and you have an agreement about child custody, you would write a parenting plan and ask the judge to sign it so it can be incorporated into a court order. However, this exact process varies from court to court.
Once a divorce case has been started, you can also ask for temporary orders for child support and spousal support.
Mediation for Parents Who Can’t Agree
If you and your spouse cannot agree on a parenting plan, you may be required to attend mediation before you stand before a judge. Some local courts require parents to go to mediation before they have a court date.
In some courts, parents are required to attend an orientation before they participate in mediation. The orientation is best described as a class where parents are educated on developing a good parenting plan. Parents are also briefed on how the court in their county operates, and they are given access to additional resources if they need more help.
If you and your spouse or domestic partner have issues over child custody and visitation, you may be able to resolve them with the help of a trained mediator. If you are able to reach an agreement through mediation, the mediator can help you draw up an agreement that the judge will be open to signing. From there, the judge would make your agreement a court order.
If parents are not able to reach an agreement about child custody and visitation during mediation, then the parents must attend a court hearing, and the issue of child custody is no longer in their control.
If you and your spouse cannot reach an agreement through mediation, the judge will have to make a decision for you, which is less than ideal. Generally, when our clients are having trouble reaching an agreement with their ex, we do everything possible to facilitate an agreement, so the court won’t have to step in.
This article is not intended to provide legal advice. For legal advice on any of the information in this post, please contact one of our attorneys. Browse our attorney profiles or contact us by phone: (805) 749-5670.
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