If you are a parent who is anxious about the child custody process in California, you are in good company. These feelings are perfectly normal. After all, the decisions on custody and visitation are so crucial and most parents know so little about the process. I thought I would explain the process in a general sense so parents have a better idea of what to expect. This post will explain the process from the filing of the Petition until the time the Court makes its first orders. The process from that point forward until trial will be explained in a subsequent post.
Keep in mind that parents can agree to a custody and visitation arrangement and the Court will almost always rubberstamp it. This post is mostly about cases where the parents can’t agree.
The First Orders
How the Court can make its first orders in a contested custody case can be quite varied. In most cases, the parties have a disagreement about child sharing and one of the parties files a request for order for the Court to make temporary custody and visitation orders. Once a request for order is filed, the parties must go to custody mediation before a Court will make a decision. The parties have the option of using a free social worker provided by the county or to use a private mediator. Depending on what county you are in, the custody mediator may make a recommendation (usually given considerable weight by the Court) for the Court to consider.
At the hearing, the parties will present evidence to the Court as to what child sharing plan is in the best interests of the child and the Court will render a decision. The decision at this stage is considered temporary. It is understood that the Court would be making a child sharing order based on limited information. A change of circumstances isn’t required to change these orders. If a party received a recommendation from the mediator that they did not agree with, that party may ask for an evidentiary hearing beyond the twenty to forty minutes normally allotted for such hearings. At an evidentiary hearing of, say 4 hours, a party can present considerable evidence, including live witness testimony, that will allow that party to challenge the assumptions upon which the mediator’s recommendation was based. It is very common for the mediator to be called as a witness so that the party challenging the recommendation can cross-examine him or her.
The time necessary for this process to play out, from the filing of a request for order, to mediation, to a hearing date, can take several months depending on how busy a particular court’s calendar is. This can be very frustrating for families who have fundamental disagreements about custody and visitation because there are no custody and visitation orders in place until the Court makes its first orders. I often tell clients it’s like the “wild wild west.” Despite the fact that there aren’t any orders in place during this time, you can expect that the Court will scrutinize the parties’ actions to see how they have cooperated in encouraging the relationship between the children and the other parent.
The court system does have a “fast track” for making such orders when the situation requires haste action. If there is domestic violence in the household, a party can request a domestic violence restraining order and get custody orders immediately. Also, the Court can provide an immediate remedy if there is a situation that is emergent, but is short of domestic violence (aka a parent gets a DUI or is caught using narcotics).
We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.