How to get a court date for child custody
What you can file to ask for a child custody and visitation order | California Courts
Index: All Pages
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.
If you have a family law case, you can file a
Request for Order in that caseIf there's already a family law case involving the child in California, then you can file a Request for Order (form FL-300) to ask the judge to make or change an order in that case about child custody and visitation (parenting time). Common family law cases are divorces or parentage (paternity) cases.
If you and the other parent agree about what orders you want, you can also ask the judge to make your agreement an order.
Generally, if there is a case in another State about custody of the child, you will need to file papers in that State to ask for custody orders. Talk to your court's Self-Help Center staff to find out your options, or talk to a lawyer for advice.
How to Request an Order
If you do not have a family law case, you need to start one to ask for custody and visitation (parenting time) orders
You first need to start a family law case (like a divorce between you and the other parent or a parentage case). Then, you can ask in that case for child custody and visitation orders. Which type of case you start depends on your situation.
Typically, the child will need to have lived in California for the past 6 months (unless they are less than 6 months old) in order for a California judge to make a decision about custody. If the child has been living in another State for the past 6 months, then often you need to file a case where the child lives now. Ask your court's Self-Help Center staff or get legal advice if you aren't sure if California is the right state to file in.
If you and the other person . . . | You can file a . . . |
|---|---|
| Are married or in a domestic partnership and want to divorce or legally separate | Petition for divorce or legal separation |
| Are married or in a domestic partnership and do not want to divorce or legally separate | Petition for Custody and Support |
| Are not married or in a domestic partnership and you are not both the child's legal parent | Petition to Determine Parentage |
| Are not married or in a domestic partnership, but are both the child's legal parent (for example, you both signed a Voluntary Declaration of Parentage or legally adopted the child) | Petition for Custody and Support -or- Petition to Determine Parentage |
| Have a child together and you need protection from the other parent | Request for a Domestic Violence Restraining Order |
If you are not the child's parent but want custody of the child because the parents are not able to care for the child, find out more about guardianships.
This is when the court orders someone other than a child's parent to have custody of the child.
Child Custody | North Carolina Judicial Branch
About
NEW RESOURCE: Child custody and visitation recommendations during COVID-19. Learn more.
What is child custody and visitation?
Child custody includes the right to make major life decisions about a child and the right to have the child in your care. Visitation is a secondary form of custody, which includes the right to visit with a child at times set forth in a court order, sometimes under specific conditions. “Visitation” is frequently used to refer to a person’s parenting time when it is relatively limited.
What is the difference between legal and physical custody?
Legal custody is the right to make major decisions about the child. Physical custody means the right to have the child in your physical care, either all the time or part of the time.
Both legal and physical custody can be either shared by the parents or held solely by one parent.
What do sole custody and joint custody mean?
A parent who has sole legal custody can make major decisions about the child’s life without consulting the other parent. If parents have joint legal custody, then they must consult one another and jointly make major decisions, such as where the child will attend school or whether the child will have a major medical procedure. If the parents cannot agree, a court may have to make the decision.
Sole physical custody means that the child lives with one parent only, though the child may visit with the other parent. Joint physical custody means that the child’s time is split between the parents. There are many possibilities for joint physical custody. One parent may have primary physical custody, meaning the child lives with that parent most of the time, while the other parent has secondary physical custody, for example, every other weekend, or regularly scheduled dinner visits.
Alternatively, there may be an equal split in which the child alternates between the parents on a regular basis.
Am I required to get a custody order?
Parents who are no longer together are not required to get a custody order, but may choose to do so in case they do not agree about the child’s care. Non-parents do not need a custody order to provide temporary care for a child as long as the parents agree that the child will live with or be cared for by the non-parent. However, schools, medical providers or other third parties may require a custody order before allowing a non-parent to make decisions for a child.
What happens if there is no custody order?
Both legal parents have equal rights to the child if there is no custody order. “Legal parents” are people officially recognized as parents on the child’s birth certificate, a court order such as a child support or adoption order, or an affidavit of parentage. Without a custody order, the rights of non-parents are much more limited, and the parents generally have the right to custody of the child.
What happens when the child turns 18?
At age 18, your child is legally an adult, and the courts no longer have the authority to order custody or visitation.
Does the law prefer one parent over the other?
No. Either parent can be awarded custody of a child of any age, depending on the family’s specific circumstances.
Does failing to pay child support affect a parent’s custody rights?
A parent’s custody rights do not depend on payment of child support, but on the type of relationship with the parent that is in the child’s best interests. A court may consider refusal to pay child support in its analysis of the parent’s ability to act in the child’s best interests.
What is an emergency custody order?
An emergency custody order, sometimes referred to as an “ex parte order,” is an immediate, short-term custody order that a judge can grant under limited emergency circumstances, without hearing from the other party.
The grounds for granting emergency custody include situations in which a child is at a substantial risk of bodily injury, sexual abuse, or removal from North Carolina for the purpose of avoiding the authority of the North Carolina courts. Law enforcement can assist in recovering a child with an emergency custody order. If an emergency custody order is granted, a hearing must be scheduled so that both parties have the opportunity to be heard. You should consider hiring an attorney if you need to file for emergency custody, because the process is complex.
Filing for Custody
Who can file for child custody or visitation?
Any parent can file for custody, whether the parents are separated, divorced or never married. Third parties, such as grandparents, relatives, or others who have cared for the child, can file for custody or visitation under some circumstances. To obtain custody, non-parents must prove that the parents are either unfit to care for the child or have not acted in accordance with their rights as parents, for instance, by abandoning the child to be raised by a non-parent.
Grandparents may also be awarded visitation in some circumstances when there is a custody case between the parents. Non-relatives requesting custody must prove that they have a substantial relationship with the child.
How do I file for custody?
To ask a court for a child custody order, you must file a complaint. Your lawyer can file the complaint for you, or if you do not have a lawyer, you can file a complaint yourself.
What resources can help me file for custody without a lawyer?
You can find information online about the process, child custody paperwork, and clinics conducted by Legal Aid of North Carolina.
Where should I file my custody case?
Custody cases must be filed in the child’s “home state,” which is the state where the child has lived for the six months before the case is filed. If you had a previous custody case about the same child in a different state, you generally must return to that state to change your custody order as long as one of the parties still lives there.
Within North Carolina, you may file a custody case in the county in which the child resides or is physically present or in a county where the parent resides.
What happens when I file for custody?
After you file your case, you must ensure that the summons and complaint are served on the other parent, generally either by the sheriff or through certified mail. A judge can only make decisions in your case after the other parent has been served with the summons and complaint.
Generally, before a judge can hear your case, it will be sent to the Custody Mediation Program. See the Custody Mediation Help Topic for more details about custody mediation. If you and the other party are unable to agree on a custody and visitation plan in mediation, a judge can hear your case to make a decision for you. In most cases, a hearing will be scheduled only if one of the parties requests it.
I went to court for custody in the past, but the situation has changed.
Can I file a new case?
If a judge signed a custody order in your earlier case, you will need to file to modify that order rather than filing a new case. In general, your Motion to Modify should be filed in the court that made the original decision. In some situations, if your previous case was dismissed, you can file a new custody case. See below for more information on modification.
Legal Representation
Do I need an attorney for my child custody case?
You are not required to hire an attorney, but child custody cases are often factually complicated and require the presentation of witnesses and documents. If you represent yourself in court, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot provide you with legal advice about your rights and obligations or the likely outcome of your case based on your family’s circumstances.
See the Find an Attorney Help Topic for more information about finding an attorney to represent you.
Can I get a court-appointed attorney for my custody case?
No. The court does not appoint attorneys to represent parties in child custody cases.
Court Process
Someone has filed a case for custody or visitation against me. What do I do?
If you are able to do so, you should discuss the case with an attorney as soon as possible. You must respond to the lawsuit by filing an Answer within 30 days after you are served with the summons and complaint. You should also attend all mediation and court dates. You will not be arrested for failing to appear in court for your custody case. However, if you do not attend mediation or hearings, you will lose your opportunity to tell the judge your side of the story and request custody or visitation rights.
What is custody mediation?
Custody mediation is a conversation between the parents assisted by a professional mediator.
The mediator works with the parents, without attorneys in the room, to come to an agreement about child custody, if possible. You can learn more about mediation in the Custody Mediation Help Topic.
Who will decide my custody case?
If you and the other parent are not able to agree on a custody order in mediation, a judge will decide your case after a trial in which you both have the opportunity to testify and call witnesses. If your judicial district has a family court program, you may have one family court judge assigned to decide all matters in your case. If not, any district court judge can hear your case.
What will the judge consider in deciding my case?
Judges decide child custody based on “the best interests of the child.” This decision can include many factors, such as the parents’ living arrangements, each parent’s ability to care for the child, the child’s relationship with each parent, and any other factors affecting the welfare of the child.
While fairness to the parents is important, this is secondary to the child’s welfare. A party’s shortcomings as a spouse or relationship partner will generally only carry substantial weight if they also impact the party’s parenting abilities. An attorney can advise you on the most relevant factors in your specific case.
Can my child talk to the judge about what he or she wants?
There are two situations in which a parent may bring a child to testify in court, and the requirements are slightly different. There is no age limit preventing parents from bringing young children to testify, but this can affect the judge’s view of the parent’s judgment, depending on the age of the child and other circumstances.
- Children can testify as witnesses to specific incidents. Before taking testimony from a child, the judge must determine that the child understands the importance of telling the truth.
- Children can speak to the judge about their preferences.
In this case, the judge must determine that the child understands the importance of telling the truth and that the child has reached the “age of discretion,” meaning that he or she has sufficient maturity and good judgment. Judges often consider teenagers’ preferences about where they want to live, but are not required to order what the teenager wants.
Many judges prefer to have children wait outside the courtroom rather than observing the trial. Many judges will speak to children “in chambers,” meaning in a separate room without the parents present, rather than having the child testify in the courtroom.
What is the difference between temporary and permanent custody orders?
Judges may enter either temporary or permanent custody orders. A temporary custody order will be in effect until the judge holds a new trial to make a decision about modifying the temporary order or entering a permanent order. Temporary custody orders are legally binding, but easier to change than permanent orders.
If you are unhappy with a temporary custody order, you can schedule your case for a review of the temporary order or for a permanent custody trial. Temporary custody orders can become permanent if neither party requests another hearing for a long period of time. To change a permanent custody order, you must show that there has been a substantial change in circumstances affecting the child since the permanent order was entered.
I am currently in the military. What are my rights?
Specific laws govern the rights of active duty members of the military. If you are unable to attend court due to your active-duty status, you can request that the court case be put “on hold” until you return. You can find more information here.
Enforcement and Modification
The other parent has violated our custody order. What can I do?
You can file a Motion for Order to Show Cause or Motion for Contempt to ask the judge to hold the other parent in contempt of court for violating the order.
If the judge finds that the other parent violated the order, the judge will decide the appropriate penalty. Penalties for contempt of court can include a verbal reprimand, a fine, jail time, or requiring the party in contempt to pay the other party’s attorney’s fees.
I have a custody order and want to change it. What can I do?
If you have a temporary custody order, you can schedule another hearing in your case without the need to file additional motions, though filing a motion may be helpful in some cases. If you have a permanent custody order, you must file a Motion to Modify. When you file a Motion to Modify, you must allege in your motion and prove in court that there has been a substantial change in circumstances since the original order was entered, and that those changes are affecting the child in a way that requires the old order to be changed to serve the child’s best interests.
I have a custody order from another state but now live in North Carolina.
What do I need to do?
Custody orders from other states are valid in North Carolina. In general, even if you and/or the child has moved from another state to North Carolina, a judge in the original state will continue to make decisions in your case as long as one of the parties still lives there. If everyone has left the original state, you can ask the North Carolina courts to take over your case. If you want a North Carolina judge to enforce or change your out-of-state order, you must begin by registering the order in North Carolina. You can find the petition to register a custody order from another state or country here.
Controversial relationship: how to get the right to a child | Articles
In Magnitogorsk, a young man with difficulty was able to get custody of his younger sister after the death of his mother - the right to a child was unexpectedly declared by a previously convicted father, who had never been interested in their life.
The story is not over yet - as in many other similar cases, the family will face long legal battles. "Izvestia" figured out what awaits minors, for the guardianship of which several parties claim at once.
How children are divided in court
22-year-old Yaroslav Ionush, a member of the Ministry of Emergency Situations, has recently become a temporary guardian for his eight-year-old sister - their mother died two years ago. However, this had to be achieved through the courts.
Yaroslav said that their mother died at the age of 38, when his sister was six years old. He took responsibility for the child, since even during the life of his mother he replaced the father of the girl - the man who was his stepfather left the family in 2014 and later did not take any part in her life. He also did not come to the funeral, he did not express a desire to pick up his daughter. However, Yaroslav was denied guardianship of his sister, since his father is alive and he must first be limited in his rights.
contentious relationship
Photo: depositphotos/Kostia777
The courts turned out to be a difficult test - the girl's previously convicted father filed a lawsuit to transfer the child to him for upbringing, and guardianship, citing some kind of psychological examination, stated that the girl wants to live with him . Yaroslav suggested that her father decided to take custody of her daughter for financial reasons.
When the man tried to establish contact with the girl, he failed - she refused to go out with him, was not happy with his gifts. New forensic examinations confirmed that the girl had no connection with her biological father.
As a result, he was limited in parental rights, and in September Yaroslav received temporary custody of the girl - so far only for six months. After this period, legal proceedings may begin again.
In Moscow, a court recently took place in another similar case - former cohabitants argued for the right to raise a child.
This story began in the winter of 2021 - Adamkhan Shukurov took his 10-month-old daughter and kept her for more than a week. It was possible to rescue the girl with great difficulty, but this was followed by litigation. At the trial, Shukurov's side claimed that his former cohabitant Oksana Smetankina was a bad mother, but could not confirm this. As a result, the court took the side of Smetankina, establishing her right to a child.
contentious relationship
Photo: ITAR-TASS/Stanislav Krasilnikov
Both cases ended successfully, but the child experiences great stress in such situations. For example, a few years ago, near St. Petersburg, a seven-year-old girl was taken away from her grandmother and handed over to her father, who was convicted three times and was serving a sentence at that time. It was possible to cancel the decision of the administration only through the court with the participation of the Commissioner for Human Rights in the Leningrad Region.
And in Tyumen, at the beginning of the year, a whole epic unfolded, when the child was taken away from the relatives of the deceased spouse by force in order to give it to the father by a court decision.
What are the interests of the child
Lawyer Viktoria Dergunova notes that all disputes about children, regardless of who they are between, should always be resolved in the interests of the child. At the same time, the Family Code does not disclose this concept, so it must be interpreted in accordance with the Convention on the Rights of the Child and the practice of the European Court of Human Rights.
- In the jurisprudence of the ECtHR, the “best interests of the child” are primarily considered the following two: maintaining ties with the family, unless it is established that these ties are undesirable, and the possibility of developing in a healthy environment , Dergunova told Izvestia. - The court should not be engaged in predicting how a child's life will turn out in a family about which he has no memory, with whose members he has no emotional connection.
She notes that the interests of the child should be understood as a frame of reference within which the situation in which the child is located should be considered.
— The ECHR has repeatedly emphasized the inflexibility of Russian legislation in terms of regulating the issues of a child's communication with significant people who are not included in the circle of his close relatives within the meaning of Art. 55 Family Code ,” Dergunova said. — Inflexibility is expressed in the fact that Russian legislation contains an exhaustive list of persons entitled to contact with a child. The legislation does not provide for any exceptions, nor does it take into account the variety of family circumstances that may be taken into account in order to ensure the best interests of the child.
contentious relationship
Photo: depositphotos/dimaberkut
As a result, she notes, In practice, situations often arise when a person who is not a relative of the child, but who is deeply attached to him and cared for him, under no circumstances has the right to communicate with him .
Attorney Anton Zharov notes that the current legislation on guardianship and guardianship contains an indication of the priority of appointing guardians or trustees only for grandparents, adult brothers and sisters of a minor ward, and great aunts and grandfathers, cousins and sisters are not covered by this rule. articles.
He notes that in Russia the family is elevated to the rank of something sacred - if a person is biologically related to a child, then he acquires significant rights, which leaves an imprint on judicial practice.
- As a result, the priority of the child's interests over the priority of parents suffers , - he explained to Izvestia. - Although, in principle, we have stipulated that the court should decide on the place of residence of the child in a disputable situation based on his interests. And a lot depends on the judge. The Supreme Court has repeatedly said that it is necessary to avoid a formal approach in such cases, that it is necessary to examine not only the materials of the case, but also communicate with people, and require guardianship to carefully examine relationships in the family.
Another thing is that with the existing workload and qualifications, do judges always do this? Probably not always.
Another question is guardianship behavior, Zharov notes. In his opinion, the principle of its work can be described as "no matter what happens."
“Guardianship agencies often take the least resistance approach so that, God forbid, there is no scandal,” he says. - The interests of the child in this case often play a secondary role, because each state body seeks first to save itself, and then, if possible, to save the children. And after all, no one will condemn the guardianship authority for giving the child to the father - it is much easier to pretend that we do not see any other circumstances, that here is the father, he is the father.
contentious relationship
Photo: Izvestiya/Alexander Kazakov
What guides the court when choosing a guardian
O.
E. Kutafina, co-founder of the ANO for the legal support of women and children "Mom in the right" Elena Grin notes: according to Art. 63 of the Family Code, parents have the priority right to raise their children over all other persons and have the right to demand the return of the child from any person.
“But the court has the right not to transfer the child if it considers that such a transfer does not meet its interests ,” she told Izvestia. - For each specific case, everything is investigated - how this parent took care of the child during the life of the other parent, the conditions created for the child, whether he remembers him, from the age of 10, the opinion of the minor himself is also taken into account.
Lawyer, specialist in family law Larisa Vetter also notes that the only legal representatives of the child are the parents.
- That is, , according to the meaning and norm of the law, it is first necessary to restrict the rights or deprive the rights of a parent if there are good reasons , - she told Izvestia.
- And only then the person who takes care of the child can be considered as a potential guardian. Restriction and deprivation of rights are the most difficult cases. It is necessary to prove that the parent harms the child by his actions.
Grin notes that in such cases a forensic psychological examination of parent-child relations is carried out, which is otherwise called “psychological and pedagogical examination”. In the course of it, the personality of the child, father, mother and other relatives who plan to live or live with him, as well as the psychological characteristics of their relationship, are examined.
“The courts are very sensitive to the preferences of a child over 10 years old ,” Grin said. — In younger children, the preference question is rarely asked because the child's opinion largely depends on the opinions of the adults around him, and also because such a question can exacerbate the child's internal conflict and affect the results of the entire study.
contentious relationship
Photo: RIA Novosti / Vladimir Song
If a question about preferences is asked and the child responds with a clear desire to live with one of the parents, then the expert must determine whether this desire is a free desire of the child or a repetition of other people's words and the result of psychological influence, Grin explains. According to her, at a younger age, when answering this question, the child more often chooses the parent in front of whom he experiences more fear. The hostile moods of the child in relation to one of the parents, the expert must also clearly understand and determine their nature - it happens that negative feelings are fueled by another parent and do not basically contain serious problems in the relationship between the parent and the child.
How parents deceive the court
“Guardianship is often regarded by negligent relatives as a tool for obtaining benefits and other types of state support ,” Alexey Gavrishev, managing partner at AVG Legal, told Izvestia.
“However, thanks to the work of guardianship authorities, as well as the provisions of the law, in most cases such intentions are easily detected and mercantilely motivated relatives do not receive guardianship.
Victoria Dergunova also notes that it will be difficult for an unscrupulous parent to deceive guardianship and court - his sincere desire to take the child will not be enough here.
— It will be necessary to provide evidence that confirms the intention and desire of unscrupulous parents to take the child into the family: communication with him, transferring funds for his maintenance, interest in his fate, she says.
Larisa Vetter notes that, nevertheless, a parent who acts for any mercenary reasons can obtain custody of a child.
— There are no exact mechanisms and tools, everything rests on the inner conviction of the court, the impression that the situation makes, she emphasizes. - That is why it is important to have evidence that can refute the words.
Elena Grin notes that in this situation, an expert in the field of psychology must establish the motives of the parent, the characteristics of his personal relationship with the child, the characteristics of all family members.
contentious relationship
Photo: RIA Novosti / Vladimir Pesnya
How to get custody of a child
A potential guardian must collect a whole package of documents, including references from the place of work and from the place of residence, proof of income, a police certificate of no criminal record, a medical report on the state of health, an act of examination of living conditions.
But in order to prove to the court that the child should live with you, especially with a living parent, you need to have strong arguments.
“You need to record your participation in the life of the child and at the same time the non-participation of the biological parent in it,” says Larisa Vetter.
- School, clinic, institutions of additional education - everyone should be aware of the situation. Then, if necessary, they will be able to confirm the real state of affairs. In addition, you need to turn to a negligent parent for the maintenance of the child, oblige him to participate in life, receive education, and so on.
Victoria Dergunova also notes that it is necessary to collect certificates from the special developmental classes that the child attends, present evidence of the work of a psychologist and a conclusion about his psycho-emotional state.
— In these disputes, the main thing is to convey information to the court about what really is the “best interests of the child”, in connection with which the process of collecting evidence is difficult, — she notes.
Guardianship of adults with legal incapacity
1. What is guardianship of adults?
Guardianship of adults is a form of arrangement for citizens recognized by the court as legally incompetent, in which citizens (guardians) appointed by the guardianship and guardianship authority are the legal representatives of the wards and perform all legally significant actions on their behalf and in their interests.
2. Who can be recognized by the court as incapable or partially capable?
A citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be recognized by a court as incapable in the manner prescribed by civil procedural legislation. He is placed under guardianship.
A citizen who, due to the abuse of alcohol or narcotic drugs, puts his family in a difficult financial situation, may be limited by the court in his legal capacity in the manner prescribed by civil procedural legislation. Guardianship is established over him.
3. Who can be the guardian of a disabled citizen?
The priority right to be guardians or trustees over all other persons has close relatives of an adult ward: parents, spouses, adult children, adult grandchildren, brothers, sisters, grandparents.
Each citizen who needs to establish guardianship or guardianship over him may have one guardian or trustee. But, based on the interests of a person who needs to establish guardianship or guardianship over him, the guardianship and guardianship authority may appoint several guardians or trustees for him.
If necessary, based on the interests of the wards, the body of guardianship and guardianship may appoint the same person as the guardian or custodian of several wards.
4. How is the control over the activities of guardians carried out?
In order to supervise the activities of guardians or trustees, the guardianship and guardianship authority at the place of residence of adult wards conducts scheduled and unscheduled inspections:
a) living conditions of an adult incapacitated citizen, observance by the guardian of his rights and legitimate interests, as well as ensuring the safety of his property;
b) fulfillment by the guardian or custodian of the requirements for the exercise of his rights and the performance of his duties.
In addition, in accordance with Article 25 of the Federal Law of April 24, 2008 No. 48-FZ "On Guardianship and Trusteeship", guardians and trustees annually, no later than February 1 of the current year, submit a written report for the previous year on storage, use the property of the ward and on the management of the property of the ward with the attachment of documents (copies of sales receipts, tax receipts, sums insured and other payment documents).
The report contains information about the state of the property and the place of its storage, the acquisition of property instead of the alienated one, the income received from the management of the property of the ward, and the expenses incurred at the expense of the property of the ward, it also indicates the dates of receipt of amounts from the account of the ward and the dates made at the expense of these amounts expenses for the needs of the ward. The report is kept in the personal file of the ward. Its form is approved by the Decree of the Government of the Russian Federation dated November 17, 2010 No. 927 "On certain issues of the implementation of guardianship and guardianship in relation to adult incapacitated or not fully capable citizens."
In accordance with paragraph 2 of Article 22 of the Federal Law of April 24, 2008 No. 48-FZ "On guardianship and guardianship", adult citizens, limited by the court in their legal capacity, independently take measures to protect their property interests.
