How the court decides child custody

Child custody and parenting time | California Courts

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When you separate from your child’s other parent, you need a parenting plan. Sometimes parents can agree to a parenting plan. Other times they need the help of the court to come up with a plan.

ON THIS PAGE

• What is a parenting plan?
• Child custody
• Parenting time 
• Determining what's in the best interest of your child
• How to get or change a custody and parenting time order
• How to respond if you got (were served) papers asking for a custody and parenting time order

Parenting plans have orders about child custody and parenting time, also called visitation. Your parenting plan should describe:

• How to care for your children
• Where they will live
• When they will see each parent

Parenting plans must be in the best interest of your children.

Until you have a court order, both parents have the same rights. This means that both of you can make decisions about your children. No parent has any more rights to have the children in their care than the other.  

If you or your child have been abused by the other parent, 

special laws apply to your case.

Child custody

Child custody refers to the rights and responsibilities of the parents for taking care of the children. There are two types: 

• Legal custody: who makes important decisions for your children (like health care, education, welfare). 

• Physical custody: who your children live with most of the time. 

Legal and physical custody can be shared (joint) or only to one parent (sole)

Joint legal custody: both parents share the rights and responsibilities for making important decisions about the children.  

Sole legal custody: only one parent has this right and responsibility. 

Parenting time

Types of parenting time orders

Parenting time (or visitation) can be open, with a schedule, supervised, or none. There are 4 main types of parenting time orders: 

With a schedule

Often, it helps parents and children to have a set schedule with the dates and times that the children will be with each parent. The schedule can include holidays, special occasions (like birthdays, mother's day, father's day, and other important dates for the family), and vacations. 

Reasonable

These orders are open-ended. They allow the parents to work it out between them. This type of plan can work if parents get along very well, can be flexible, and communicate well. But, if you disagree, not having a set schedule can create problems. 

Supervised

This is used when there are concerns about the children’s safety and well-being. The visits with the other parent are supervised by you, another adult, or a professional agency. It is sometimes used when a child and a parent need time to become more familiar with each other, like if a parent has not seen their child in a long time and both need to slowly get to know each other again. Find more information on supervised visitation. 

No visitation

It is used when visiting with a parent, even if supervised, would be physically or emotionally harmful to the children.  

If you and the other parent can't agree on a parenting plan, then you will have to ask a judge to decide. To decide what is best for a child, the judge considers: 

• The age and health of the child

• The emotional ties between the parents and the child

• The child’s ties to their school, home, and community

• The ability of each parent to care for the child

• Any history of family violence 

• Any regular and ongoing substance abuse by either parent

Then, the judge decides based on what's in the best interest of your child.

How to get or change a custody and parenting time order

File papers with the court to ask for an order

There are different types of cases and papers you can file to ask for a child custody and visitation (parenting time) order. Which type of case or papers you can file depends on your situation, like whether you and the other parent are married or you already filed a family law case.

To figure out what type of case and forms you need to file, you can answer a few questions to get to find out what papers to file to get an order. Or, you can review all the options.

Find out what forms to file

Your options to respond, the forms you use to respond, and any deadlines you need to meet depend on which forms you were given. The forms should have a form number in the upper right or left-hand corner. Get step-by-step instructions to respond to:

• Form FL-300 or DV-100. These forms mean you have a court date. 
• Form FL-100, Form FL-200, or Form FL-260. These are forms that start a family law case, like a divorce. You generally have 30 days to file a response to these.

If you do not respond, a judge may make a decision without your input.

• Related content

  Resources to help develop a parenting plan

  Enforce a custody order

  Child support

Children's Best Interests & Custody: What Judges Look For

Learn what judges look for when they're deciding which parenting arrangements would be in the children's best interests.

All states use a "best interest of the child" standard in disputed custody cases. But what does that actually mean in practice? Ultimately, it comes down to what a judge believes, based on the particular circumstances in a case.

Still, many state laws spell out a list of factors that judges must consider when deciding what's in the children's best interests. These factors vary from state to state. They can also vary from case to case—even states with a long list of specific factors invariably add something like "and any other relevant factor. "

Here are some examples of the most common factors that judges typically must take into account.

• Each Parent's Ability to Meet Children's Needs
• Children's Relationship With Both Parents
  • Parents' Willingness to Support Each Other's Relationship With Their Children
  • Parents' Relationships With Their Children Before Divorce
  • A History of Abuse or Neglect
• Children's Need for Continuity and Stability
  • Each Parent's Living Situation
  • How Far Apart the Parents Live From Each Other
• The Children's Preferences
• Does the Age of a Child Matter in Custody Decisions?

Each Parent's Ability to Meet Children's Needs

The most basic part of the "best interests" standard is that custody decisions should serve the children's health, safety, and welfare. Judges will look at whether one or both parents are able to handle a child's special educational, medical, mental health, and other needs.

Children's Relationship With Both Parents

Many states have an explicit policy of encouraging frequent and continuing contact between children and their divorced or separated parents. In pursuit of that goal, judges will consider several factors related to the past and present parent-child relationships.

Parents' Willingness to Support Each Other's Relationship With Their Children

Judges will look at the parents' history of cooperating—or not— with each other around their parenting schedule. For instance, judges might want to know things like whether one parent interferes with visitation in any way.

Judges will also look for evidence of each parents' willingness to foster a good relationship between their child and the other parent. Is one parent bad-mouthing the other in front of the kids? Does one parent tend to start arguments when picking up or dropping off the child with the other parent?

The more cooperative parents will usually have an edge in a custody dispute. And parents who are obviously trying to alienate a child from the other parent—or who just can't refrain from undermining the other parent's relationship with the kids—will learn the hard way that judges don't look kindly on that type of behavior.

Parents' Relationships With Their Children Before Divorce

Judges will look at each parent's history of taking care of and spending time with their children on a day-to-day basis. Sometimes, parents who haven't been much involved with their kids' lives suddenly develop a strong desire to spend more time with the children once the marriage has ended.

In many cases, this desire is sincere, and a judge will respect it—especially if the parent has been dedicated to parenting during the separation period. But the judge will definitely take some time to evaluate the situation to make sure that a parent isn't requesting custody primarily to win out over the other parent, and that a parent with little experience of daily caretaking can follow through with those new-found wishes.

History of Abuse or Neglect

Obviously, when there's clear evidence of child abuse or neglect, a judge will limit the abusive parent's contact with the children. If judges do award visitation in these cases, it will usually be supervised and structured in a way to protect the children from future emotional or physical harm.

Domestic violence against the other parent will also play into custody decisions, particularly when the kids have witnessed the abuse..

Children's Need for Continuity and Stability

When it comes to children, judges are big on the status quo, because most of them believe that piling more change on top of the traumatic transition of divorce generally isn't good for kids. Among other things, judges may look at the child's ties to the current school and community.

So if you're arguing that things are working fine, you've got a leg up on a spouse who's arguing for a major change in the custody or visitation schedule that's already in place.

Several other factors that judges consider are related to children's need for stability after divorce.

Each Parent's Living Situation

There's a bit of a chicken-and-egg dilemma surrounding the issue of which parent keeps the family home and how that affects custody. Often, the judge awards the home to the parent with physical custody of the children, because that will provide stability and continuity in the children's lives. Other times, the judge awards custody to the parent who's going to stay in the family home, for the same reason.

Whether you're the "out-parent" (the one who isn't staying in the family home), or neither you nor your ex were able to keep the house after divorce, you'll need to prove that your current living situation would be a good place for the children to spend a lot of time if you want primary or shared custody. Don't expect to get that result if you're crashing in your best friend's guest room while you get back on your feet after the divorce.

At the same time, most judges will try to avoid penalizing parents who can't afford a nice home with an ideal set-up for kids. (It's also worth noting that the child support laws in many states allow judges to consider the differences in living standards between the parents' households when they're deciding on the amount of child support in cases where the kids will spend time with both parents.)

How Far Apart the Parents Live From Each Other

The proximity of your home to your spouse's may also factor in to the judge's custody decision. The closer you are to each other, the more likely it is that the judge will order a time-sharing plan that gives both parents significant time with the kids. When parents live in the same community, their children can continue with their same social, sports, and religious activities regardless of which parent they're staying with on which day. Geographical distance becomes more important as kids get older and maintain stronger bonds with their friends.

It's also less taxing on the children to go back and forth between parents who don't live far apart.

The Children's Preferences

Depending on the state and the children's maturity, judges may talk to kids to find out where they want to live and how much time they want to spend with each parent. Or judges may learn about the children's opinions from a custody evaluator.

Some states require judges to consider children's custody preferences when they've reached a certain age, but they may listen to younger children's view when it's appropriate. In other states, the requirement isn't about the child's age as much as the ability to express an opinion based on sound reasoning—not on things like which parent will let them stay up late.

Still other states disapprove of bringing the children into custody decisions at all.

Does the Age of a Child Matter in Custody Decisions?

The "tender years" doctrine—the idea that young children should stay with their mothers—has long been officially out of fashion. The gender of the parents is not a factor to be considered in custody decisions, but some states still allow judges to consider the children's age. And some judges continue to believe that younger children should live with their mothers, especially when the mother has been the primary caregiver. Certainly, it's not likely that a father would be awarded sole custody of a nursing baby.

RF IC Article 145. Establishment of guardianship or custody of children left without parental care \ ConsultantPlus