No. You do not have to have a lawyer when you go to court. In California, several hundred thousand people each year go to court without a lawyer. This is called being in "pro per" -- the legal term for a person representing him or herself without a lawyer. However, some cases are complicated. This is when a lawyer can be most helpful.
You may find that you need a lawyer if:
- anyone involved has an estate with substantial assets;
- anyone involved lives outside of California;
- there are some other legal proceedings going on at the same time;
- anyone involved has special needs (physically/emotionally disabled);
- anyone involved is a member of the armed services, or
- anyone involved is Native American (in which case, federal laws may apply).
Lawyers are trained to research the intent of laws and judicial decisions and apply the law to the specific circumstances you face. In addition to skills in legal research, a lawyer will usually have:
- familiarity with courtroom rules and procedures;
- an understanding of when a witness is needed, and how he or she should be prepared for a trial;
- an understanding of when an expert, consultant, or investigator is needed – where to find such a person, and how much is reasonable to pay; and
- experience with different strategies for effective presentation of a case in court.
If you cannot afford to hire a lawyer there are several options that may help.
- Every superior court in California has legal help available in family law and in small claims cases. Several superior courts can also help you with other legal issues. Find out what services are available at your court.
- There are legal aid offices in many cities throughout California. These are non-profit organizations that provide free legal services to people below a certain income level. Find legal aid offices in your area and find out what areas of law they cover.
- If you don’t have much money but the other party in your case does, the court might order the other party to pay for some or all of your lawyer’s fees. (You would have to ask the court for this. It is not automatic.)
- Many bar associations have Modest Means Panels made up of lawyers who will take certain kinds of cases for a reduced fee. (You would have to find your local bar association and ask if it could help you with this.)
- You may be able to find a lawyer who will coach you on representing yourself (called "coaching"), or who will only handle (and charge you for) the more complicated parts of your case. This is called "limited scope representation" or "unbundled legal services.” (Your local bar association may have a list of lawyers who do limited scope representation.)
Generally, lawyers specialize in a particular area of the law. They may specialize in trial law (civil or criminal), bankruptcy law, elder law, family law, etc. When working with a lawyer, it is important to know his or her specialty.
NOTE: A lawyer cannot represent you in Small Claims court but they may help you prepare for your case.
If you decide to hire a lawyer, make sure you understand:
- what you will be paying for,
- how much it will cost, and
- when you will be expected to pay your bill.
You may want to talk to several attorneys before you hire one.
- Go to the State Bar of California’s Lawyer Referral Service.
You can also find attorneys listed in the Yellow Pages of the telephone directory, or through the internet.
- Get more help finding free and low-cost legal aid.
A “custodian” is a person who “guards or protects” someone else. In a court of law, child custody means the appointing of one or more persons to take care of and control a child under the age of 18 years.
In the State of California, there are two types of child custody:
- Physical custody means who the child lives with most of the time;
- Legal custody means who has the right and responsibility to make the decisions relating to the health, education and welfare of the child.
The physical and legal custody of the child may be “sole” or “joint.” For example:
- Sole physical custody means that the child will live with and be under the supervision of one parent. (The court may order that the other parent has some rights to visit the child.)
- Joint physical custody means that each of the parents will have significant periods of physical custody.
- Sole legal custody means that one parent will have the right and the responsibility to make the decisions relating to the health, education, and welfare of the child.
- Joint legal custody means that both parents will share the right and the responsibility to make the decisions relating to the health, education, and welfare of the child.
In general, after parents separate, it is considered best if the child has frequent and continuing contact with both parents and that both parents share the rights and responsibilities of raising their child. (See California Family Code, Sections 3000 & 3010)
NOTE: If the child has any Native American heritage, or if one of the parents is a deployed service member, there are special rules that apply. These may be very complicated. If either of these applies to your situation, consider consulting with an attorney. Find low-cost legal aid.
Normally, a judge will allow each parent to spend time with his or her children. The judge will also require each parent care for and support his or her children.The court will not prefer a parent on the basis of that parent’s gender.
If one parent is dead, is unable or unwilling to take custody, or has abandoned the child, the other parent will usually get both legal and physical custody of the child.
Sometimes, both parents are unwilling or unable to care for their children. In these cases, a third person may be chosen to care for the children.
A judge could order that a parent cannot have contact with his or her children if the judge decides that:
- A parent is legally incompetent. Even then, the court may allow supervised visitation;
- A parent is not related to the children by blood or legal adoption. However, that person could be given the status of parent in the parenting agreement; or
- The contact would be harmful to the children.
In extreme cases, a court can terminate a person’s parental rights. The court would have to find that the parent has abandoned the children, or engages in behavior highly damaging to the children.
A court could give custody to a non-parent if it is harmful for the child to live with their parents.
It might be harmful to live with their parents if there is:
- Any proven history of abuse or serious neglect by one parent against the child, the other parent, or others;
- Abuse of drugs or alcohol by either parent;
- Serious mental illness or other factors if it prevents a parent from caring for the child.
The court may also find it is better for a non-parent to have custody if they have already been living with the child and meeting the child's physical and emotional needs.
In extreme cases, a court can terminate a person’s parental rights. This would usually be after finding that the parent has abandoned the children or engages in behavior highly damaging to the children.
1. If the parents are married or domestic partners
- Divorce/Legal Separation/Annulment
You can ask for child custody and visitation orders as part of
divorce, annulment, or legal separation case. You can get temporary orders for child custody while you are waiting for the final judgment in your divorce case.
- Petition for Custody and Support
You can also start a court case by filing a:
- Petition for Custody and Support of Minor Children (Form FL-260)
See the instructions for this form.
By opening a case in this way, the court can make child custody orders and other orders.
- Petition for Custody and Support of Minor Children (Form FL-260)
2. If the parents are not spouses or domestic partners
- Parentage Case
A parentage case is for parents who have children together, but are not married or in a domestic partnership. It establishes who the child's legal parents are. The judge can make child custody and visitation orders in a parentage case. See the “
Parentage” section on this website for more information.
- Petition for Custody and Support
If you have signed a
Declaration of Paternity, you can start a custody or visitation case by filing:
3. Domestic Violence Restraining Order
If you have been a victim of domestic violence, you can ask for child custody when you ask for a domestic violence restraining order.
4. Department of Child Support Services (DCSS) Enforcement Case
If you have a child support case filed by the Department of Child Support Services, you may be able to ask for custody and visitation orders. You must wait until parentage has been established and both parents are involved in the case.
Many different family structures are acceptable to the court.
Step-families: In a step-family, a parent has a new long-term relationship. The children usually refer to the new partner as a stepmother or stepfather. The partner calls the children his or her stepchildren.
Single parents: Many people have children on their own, without a partner.
Grandparent-headed families: In many families, grandparents have custody of their grandchildren.
Unmarried couples: Many unmarried couples have children together.
Same-Sex Parents: Same-sex couples have children through donor insemination, surrogacy, or adoption, as well as raising children from prior relationships.
Usually, a young person does not have the right to choose where to live until he or she turns 18 years old.
In a child custody case, if the parents ask the court to decide where the child will live, the judge may consider the child’s wishes as one factor in making his or her order. However, the first concern of the judge always will be the best interest of the child.
Under certain circumstances, the child may be allowed to tell the judge directly about his or her own preferences regarding a custodial arrangement.
Normally, the older the child is, the more importance is given to the child’s wishes. This is called having "sufficient age and capacity to reason." (See California Family Code, Section 3042)
If a judge learned that a child would rather live with one parent than the other, the judge would probably ask:
- What is the reason the child wants to live with one parent more than the other?
- Is the reason a valid one?
- Is the reason an important factor in the child’s life, such as schooling or a need for specialized medical care?
- What is the level of stability and reliability of the parent the child wants to live with?
- What is the level of the child’s social maturity and emotional and intellectual development?
- How does each parent support the child’s preference?
- Has the child been pressured or manipulated into stating a preference?
The judge would probably give serious consideration to the child’s choice if it is based on sound reasoning and achieves the child’s long-term best interests.
In California, children have a right to be supported financially by both legal parents. Child support ensures that every child has the food, clothing, medical care and ability to get an education that will enable him or her to have a successful life.
Often, when parents are asking for child custody and visitation issues to be settled, they are also asking that child support be established. For more information about child support, please go to our
Some parents leave their families and are never heard from again. Others are around so rarely that they have basically abandoned their families.
If the remaining parent wants to go to court to make his or her status legal, the absent parent has a constitutional right to be notified of the proceedings. This is called “
Contact a lawyer if:
- You don’t know where the other parent is; or
- The other parent is in the military, in jail, or living out of state.
Find a lawyer in your county.
Find a lawyer in Contra Costa County.
If the parents live in different states it can be hard to resolve custody issues. It may be best to work with attorneys who have experience with these types of cases. This is especially important if one parent lives in another state due to their military service. Find low-cost legal aid.
Interstate Custody Issues
All states of the United States and the District of Columbia have adopted the Uniform Child Custody Jurisdiction Act, or UCCJA. This law tells courts when they may make a custody decision, and when they must accept an existing decision from another state.
In general, a state may make a custody decision about a child if:
- The state is the child’s “home” state. This means the child has lived in the state for the last six months, or was living in the state but is not there because a parent took the child or kept him or her out of the state. OR
- The child has significant connections with people in the state, such as teachers, doctors, and grandparents. It can be proven that the child’s care, protection, training, and personal relationships are based there. OR
- The child is in the state and either has been abandoned or is in danger of being abused or neglected if sent back to the other state. OR
- No other state can meet one of the three tests or a state can meet at least one of the tests but won't make a custody decision.
A custody decision can only be made in one state. Once the first state makes a custody decision, another state cannot make another decision or modify the existing order.
Having the same law in all states helps custody decisions be followed consistently. It also helps solve many of the problems created by kidnapping or disagreements over custody between parents living in different states.
If the two legal parents of a child live in or come from different countries and they are trying to resolve custody issues, it may be best for them to work with attorneys who have experience with these types of cases. This is especially important if one parent lives in another country due to their military service.
- Find low-cost legal aid.
If a child is abducted from the United States to another country – or a child is abducted from another country and brought to the United States – the U.S. State Department may be contacted for help.
In the United States, physical violence, threats of violence, sexual assault, and child abuse are illegal. This is true no matter a person’s culture, religion, citizenship status, personal beliefs about discipline, or the proper relationship between spouses.
For abuse to be called "domestic violence:"
The abuse must happen between people who are "intimately involved," such as:
- A spouse or former spouse.
- A domestic partner or former domestic partner.
- People who live together, or used to live together.
- People who are or were dating.
- People who have a child together.
- A parent and child.
- Other people related by blood, adoption, or marriage within the second degree.
A court will issue a restraining order to make sure that one parent cannot hurt the other. If a court issues an order to protect one parent from domestic violence, it means that the other parent cannot hit, kick, scare, throw things, pull hair, push, follow, harass, or sexually assault. They also cannot threaten to do any of these things. Domestic violence can be spoken, written, or physical.
IMPORTANT NOTE: It is important that violent or abusive behavior is reported to the court. Violence, abuse, and neglect will all be considered very seriously when decisions are being made about child custody and visitation.
IF YOU NEED PROTECTION RIGHT NOW, you should call 911. Or you can call:
- a local law enforcement agency, or
- a domestic violence shelter, or
- the National Domestic Violence Hotline at 1-800-799-7233.
For more information, visit our
Court-ordered child custody usually ends when the child:
- turns 18,
- gets married or joins the military;
- the court ends the custody; or
whichever happens first.
In California, on a person’s 18th birthday, he or she is considered an adult. From that date, the laws of child custody no longer apply.
A parenting plan is a legal document that explains how the parents will share their parenting rights and responsibilities. The parenting plan needs to be based on the best interest of the child.
The plan should cover:
- How the child will spend time with each parent.
- Who will make decisions regarding health care, education, religious training, and activities.
- How a child's special needs or interests can be addressed.
When making the plan, parents need to consider their child’s age, personality, experiences, and ability. Usually, the plan should:
- Give the child regular times with each parent for day-to-day care, overnights, activities, schoolwork, vacations, and holidays;
- Be detailed enough that it’s easy to understand and enforce; and
- Give the child a reliable routine.
The plan needs to be in writing and signed by both parents. If the parents can agree on their custody and visitation issues, the court will usually approve the arrangement.
NOTE: If the parents cannot agree, the judge may make their parenting plan for them at a court hearing.
Often, deciding where the children will live is the most important question separating parents must answer. It also could be the most complicated subject they will have to
In California, the decisions about who the children live with are called "physical custody" decisions.
Sole physical custody means that the child will live with and be under the supervision of one parent. (The court may order that the other parent has some rights to visit the child.)
Joint physical custody means that each of the parents will have significant periods of physical custody. For example the parents could agree that:
- The child will live with one parent during the week, and the other parent on weekends or alternating weekends,
- The child will alternate weeks, or half-weeks, in each parent’s home, or
- The child will spend the school year with one parent and the summer vacation with the other parent.
In deciding where the children will live, the parents might consider:
- Who provided most of the daily childcare when they were a couple?
- Who lives near the better schools?
- Whose home is more conducive to studying?
- Who lives closer to community recreation programs and sports facilities in which the children participate?
- Who lives closer to the children’s friends, or lives in a neighborhood with similar-aged children?
- The wishes of the child.
There seem to be an endless number of ways parents decide to share their time with their children. In making their decisions, it often helps if they remember that their parenting plan can be changed as the situation changes or the child's needs change.
The court will normally approve any agreement the parents come to, as long as it seems to be in the best interest of the child.
In California, if the parents cannot reach an agreement, before they see a judge they must attend child custody mediation.
In California, decisions about who will have the right and responsibly to make decisions on matters concerning the health, education and welfare of children are called “
Sole legal custody means that only one parent has the right and responsibility to make the decisions relating to the health, education, and welfare of the child.
Joint legal custody means that both parents will share the rights and responsibilities to make the decisions relating to the health, education, and welfare of the child. It can also mean that either parent on their own can make emergency decisions on the child's behalf.
It is important to reach an agreement about which decisions parents can make without asking the other or without reaching an agreement with the other parent. Some of the decisions to consider in this way include:
- Where will the children go to school?
- What kind of daycare do the children need?
- What religion will the children be raised in?
- Who will be the children’s primary medical and dental care providers?
- Who will make decisions in cases of emergency?
- As the children get older, what kinds of jobs can they accept?
- When they get old enough, will they be allowed to get a drivers’ license?
NOTE: Joint custody means:
- Both parents have the right to have information about the child;
- Both parents have the right to call the child;
- Both parents have the right to look at their child’s medical, dental and school records;
- Each parent has the right to the other parent’s address and phone numbers.
Parents who are separating, dissolving their marriage, or ending their relationship may chose different ways to take care of their children. If the parents agree on where their children will live, generally the courts will approve their written agreement.
Among the arrangements people may choose for their children are:
- One primary residence. With this choice, the children spend more time with one parent. For example, the parents could agree that the children live with one parent during the week, and the other parent during weekends or alternating weekends. Holidays and vacation times are worked out separately.
- Dual residences. With this choice, the children spend approximately equal amounts of time with both parents. For example, the parents could agree that the children alternate weeks, or half-weeks, in each parent’s home. Again, holidays and vacations times need to be worked out separately.
- "Bird nesting." With this choice, the children remain in one home and the parents alternate moving in and out. This is not chosen often, but could be good for some children. It requires an unusual degree of coordination and cooperation between the parents to make this work.
- Children live with someone other than a parent. For some families, it makes sense for the children to live with an adult other than a parent. This third adult may also have custody of the children or may be appointed their guardian. If this situation is chosen, it needs to be stated clearly in the parenting plan.
It may help to remember that parenting plans can be changed later as the circumstances change. Parents may develop short-term arrangements that will allow everyone time to settle into things gradually. Later, they will have time to see what makes the most sense in the long run.
Deciding how to divide the holidays and other vacations can be difficult. In making these decisions, it can help to remember that every holiday happens every year. If the parents agree, the courts will usually approve their written agreement.
Among the arrangements people may choose for their children are:
- Alternate on a yearly basis. This choice assigns holidays to each parent in odd years and then reverses the schedule in even years. For example, the children might spend Thanksgiving with one parent in 2016 and the other parent in 2017. Parents often like this plan because they know they will never miss spending a holiday with their children more than one year in a row.
- Divide holiday celebrations in half. Some parents divide the actual holiday in half so that their children can spend part of the time with each parent. This allows everyone to see each other on the “big day.” It does require advance planning, however, so that the children do not miss the main part of the celebration because of travel.
- Celebrate important holidays twice. Some families celebrate holidays twice. For example, one parent might celebrate Christmas with their children a week before the actual date, and the other celebrates it with the children on December 25th. Few children complain about getting to celebrate twice.
- Develop a fixed holiday schedule. If the parents differ on which holidays are special, they may assign holiday time so that each of them celebrates the same holidays every year with their children. For example, if one parent participates in religious celebrations and the other does not, the other parent may choose nonreligious holiday times for vacations, trips and other activities.
- Make decisions as each holiday approaches. Some parents prefer not to be tied down to a holiday schedule. It means, however, that they must spend time arranging every holiday. Also, if they choose this option, they should decide how far in advance of each holiday they will make their plans.
It’s hard when a child is not feeling well. If it’s time for the child to go from one home to another, should the change be put off? Unfortunately, there are no easy answers to this question. Clearly, the age of the child and the seriousness of the illness need to be taken into account. Also, the distance between the two homes will be a major factor in decision-making. Some parents use the standard that if the child is well enough to go to school, he or she is well enough to move from one home to another. However, deciding whether the child should go to school or not is often difficult, so that standard is not too helpful.
Here are some considerations:
- Both parents have not just the right, but an obligation to care for the child while the child is ill. It is unreasonable to expect the custodial parent to take over all care of a sick child, just as it is unreasonable to deny parenting time due to minor illnesses.
- The child's feelings count. It's typical for a sick child to be cranky and unhappy; moving them to the other home may only intensify these feelings. On the other hand, children are prone to "cabin fever" just like adults. A change of environment may very well make the child feel better and help take their mind off their illness.
- When parents share care of an ill child, clear communication is crucial. If the child is on any kind of medication, knowing when the child took his or her last dose and/or when the next dose should be given is important information that parents should convey when exchanging the child. Both parents might keep a simple log of what medication(s) the child is taking and what the medication schedule is.
If parenting time is missed due to sickness, the non-custodial parent probably may want to make the time up. Reasonable "illness contingencies" may be written into every parenting plan. This needs to take into account that each parent's situation (travel, work schedules, etc) is different.
“Supervised visitation” means that another adult must be present when the visiting parent is with the child. The court will order this when there are serious issues of child abuse or neglect, or a risk of kidnapping.
The court will decide:
- Who will supervise the visits and what kind of training this person will need;
- How long the visits will last;
- How often the visits will take place;
- Whether the supervisor must be a therapist, counselor, or social worker; and
- Who will pay for a professional supervisor, if one is used.
A parent may also ask the court to order other conditions as well
For example, the court could be asked:
- Whether the visits can take place at the parent’s home or at another location, such as a playground or visitation center;
- Whether the exchange must take place in a specific place to ensure everyone's safety; or
- Whether there will be limits on the types of activities the children can do with this parent.
In all cases, the court will be focused on the
Sometimes parents worry that the other parent, or some other person might take the child during a visit out of the area or state without permission.
If a parent is worried that the other parent might take the child out of the country without permission, the key resource available to gain access to the child or to force the other parent to return the child to the United States is the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an agreement between the United States and approximately 50 other countries. This convention is a legal mechanism available to parents seeking the return of, or access to, their child. The parents, not the governments, are parties to the legal action.
Also, the U.S. Department of State has a list of precautions that any parent should take if they are worried about the possibility of child abduction. For more information, please see the U.S. State Department’s website.
In addition, the National Center for Missing and Exploited Children suggests that you teach your child to use the telephone, memorize your home phone number, and instruct him or her to call home immediately if anything unusual happens. Discuss possible plans of action with your child in the case of abduction.
Most important, however, if you feel your child is vulnerable to abduction, seek legal advice. Do not merely tell a friend or relative about your fears. Find a lawyer.
If parents cannot agree on all of their custody issues, they will be required to attend child custody recommending counseling or mediation to get help in working out their parenting plan. This counseling must happen before they meet with a judge.
A counselor or mediator is a trained person who can help parents talk about ways to meet the needs of their child. Every family court is required to have a counselor or mediator available to help parents who cannot agree on a parenting plan.
The goals of counseling or mediation are to:
- Help parents make a plan that is in the best interest of their children;
- Help parents make a plan that lets their children spend time with each of them; and
- Help parents learn ways to deal with their anger or resentment.
A counselor or mediator cannot make any decisions for the parents. In some counties, including Contra Costa, the child custody recommending counselor may make a recommendation regarding what parenting plan he or she believes will be in a child's best interests.
This recommendation must be in writing and a copy must be given to each parent and the judge. The recommendation will state what custody orders the counselor believes will be in the best interests of the child and why.
Child custody counseling lets parents work with a trained professional who can help them find ways they can share parenting responsibilities to meet their child's needs.
The counselor or mediator's job is to:
- Listen to both of the parents - and, in some cases, to the child's wishes;
- Be neutral;
- Help the parents look at different options;
- Help the parents decide when the child will be with each parent;
- Help the parents decide how future decisions about their child will be made;
- Help the parents consider how best to protect their child's safety and welfare;
- Support each parent.
In some counties (including Contra Costa), if the parents can't agree on a parenting plan through mediation, the child custody recommending counselor will make a recommendation to the court. This must be in writing and state the counselor's opinion about what parenting arrangement will be in the child's best interest and why.
Parents’ guidelines for counseling or mediation:
- Treat each other with respect. You will both get a chance to explain your ideas.
- Listen to each other and try to find real solutions.
- Put your child's interests first. Think about what they need and can handle.
Learn how to prepare for child custody recommending counseling or mediation.
A court counselor, or mediator, is a person who can help parents talk about ways to meet the needs of their child. They are specially trained and independent.
Counselors hired by the courts have to meet certain standards:
- A master's degree in counseling, social work, or a related field;
- At least two years of experience working in mental health;
- Know about research in the areas of child development, child custody, and the effects of divorce, domestic violence, and child abuse on a child,
- Be able to assess the mental health needs of the child;
- Know how the family court system works.
The counselor or mediator will also have information about community services that may be helpful to each parent.
If a parent has been a victim of domestic violence, he or she can ask to meet with the counselor or mediator separately from the other parent. He or she can also bring a support person to the counseling or mediation sessions and to court.
If you are experiencing domestic violence, you should:
- Tell the counselor or mediator as soon as possible;
- Tell your lawyer, if you have one; and
- Answer all of the judge or counselor's questions about this problem.
If a counselor or mediator has a reasonable suspicion of child abuse or neglect, he or she must report it. The counselor or mediator will have a list of places that can help the parent and his or her children.
IF YOU NEED PROTECTION RIGHT NOW, you should call 911.
You can also call
- a local law enforcement agency, or
- a domestic violence shelter, or
- the National Domestic Violence Hotline at 1-800-799-7233.
Learn more about
Each court decides whether they will ask child custody mediators to make recommendations to the court.
If the mediators in your county DO NOT make recommendations, then everything that is said in mediation IS considered confidential. That means what is said there, stays there. It cannot be discussed in court.
If the mediators in your county DO make recommendations, then they are called child custody recommending counselors. What parents say in counseling IS NOT confidential. If the two parents cannot reach an agreement, these courts will ask counselors to make “recommendations.”
- The counselor might talk to the child, to teachers, doctors or others who know about the family situation.
- The counselor might recommend a child custody evaluator do a detailed study of the family situation to share with the court.
- What parents say in counseling can be reported to the judge, the other parent, or any of the lawyers involved in the case.
NOTE 1: If a counselor or mediator has a reasonable suspicion of child abuse or neglect, he or she is required by law to report this to the county’s child protective services. This is true whether or not your court asks mediators to make recommendations.
NOTE 2: The rules are different for private mediation. In private mediation, everything that anybody says is completely confidential. Nothing can be used in court.
Many families have issues that make parenting more difficult, for example:
- Domestic violence.
- Substance abuse.
- Mental health issues.
- Health care issues.
- Serving a jail sentence.
Parents can agree to get help with these issues as part of their parenting plan. In other cases, getting help may be required by the court in the court order. Some examples of these types of help include:
- Drug testing.
- Parenting classes.
- Anger management classes.
- Family, child, or individual therapy.
- A medical assessment for long term treatment needs.
- Support services to assist a parent who is in jail.
If you are looking for these resources on your own, you can ask:
- Schools and school counseling departments.
- Family doctors.
- Counselors or other therapists.
- Religious leaders.
- Community organizations.
- Youth group programs.
- Public health clinics.
- The internet.
For help in Contra Costa County, see the County Online Resource Database.
Court-ordered counseling is for parents only. Children, attorneys, new partners or others are not included in counseling or mediation sessions. Two important exceptions are:
- Domestic violence support persons
If there is a restraining order or a history of domestic violence, you can ask the counselor to meet with you and the other parent at separate times. You can also ask to have a domestic violence support person go with you.
If a parent doesn't speak English well, then he or she may bring an interpreter. Some courts offer trained interpreters, but most do not. If you do not know how to hire a trained interpreter, you can ask the counselor or mediator to help you. You can also have a friend or family member serve as your interpreter. It is NOT a good idea to have your children to serve as your interpreter. Your interpreter must be ready to translate everything that is said by everyone, as closely as possible, without adding new information or their own comments in the process.
In private mediation, when both parents agree to hire a professional mediator outside the court system, different rules apply. Attorneys and other support people often participate in private mediation. However, children should never be taken to counseling or mediation unless the counselor or mediator has requested it.
Court-ordered child custody recommending counseling or mediation sessions can last for different amounts of time in each court. Some courts are only able to offer parents 1-hour appointments. Others can work with parents during one or more appointments that last 2 to 3 hours each. This is an important question to ask when you set up your counseling or mediation appointment.
If parents want more time with a mediator, it might make sense to hire a private mediator. Private mediators often work with parents for 4 to 6 hours over the course of one or more appointments. While working with a private mediator will cost the parents money, it can help resolve their differences and work out a parenting agreement that will support their child and work well for their family situation.
To find a mediator in your area:
- Look up divorce mediators on the internet.
- Ask a family law attorney or family counselor or therapist for a referral.
- Learn about
mediation in Contra Costa County.
- Find a lawyer.
Sometimes, he or she can ask the court to make temporary custody orders on an emergency basis. Someone can ask for this if he or she can show that there risk that the child will be harmed or removed from California if the court does not do something that day. These emergency orders are also called ex-parte orders. They will only be in place for a short time. The court will schedule a regular hearing to consider whether the orders should continue after the temporary period. The other parent must be told about that later hearing, and he or she has a right to be at that hearing.
NOTE: “Immediate harm to the child” includes having a parent who has committed acts of domestic violence, where the court determines that these acts are recent or are part of a demonstrated and continuing pattern of acts
of domestic violence.
You CAN ask for emergency orders:
- If you already have a case open in Family Court for divorce, legal separation, parentage, child support, or custody, OR
- You are now filing the forms below to open a case in Family Court.
You CANNOT use these forms: If orders have been made in another court regarding this child (for example: Juvenile Court, Guardianship in Probate Court, or a court in another county).
How to ask for Temporary Child Custody Orders:
STEP 1. Fill out these 2 forms:
STEP 2. Before you file the forms with the Court Clerk:
- If there is a written agreement between the two parents about the temporary custody of their child, attach it to the Temporary Orders form. (If there is no agreement, skip this)
- Make 3 copies of your completed forms with their attachments.
STEP 3. File the forms at the courthouse:
A. When you are ready, take your original forms and your copies to the Court Clerk’s office for filing. You may need to pay a filing fee.
- If your income is low and you want to ask to not pay the filing fee, you can apply for a
- Learn where to file the forms in Contra Costa County.
B. Requests for temporary orders need to be reviewed by a judge before they
C. If there is NO agreement between the parents about the temporary custody arrangements, the court may grant the emergency orders but will schedule a special hearing to give both parents a chance to tell their story.
STEP 4. Pick up your filed papers from the Clerk’s Office:
- Be sure to read the front page of your "Request for Order" and "Temporary Orders" to see what temporary orders the judge made.
- These orders are in effect immediately and last only until your court hearing.
- The date and time of your court hearing is written on the front of the "Request for Order" form.
STEP 5. Serve the forms: YOU CANNOT SERVE YOUR OWN FORMS.
- Have copies of all of these filed papers
personally served on the other parent (and on the Department of Child Support Services if it is involved in the case).
- Also have the other parent served with a blank copy of the forms that they can complete:
Have the person who served the papers fill out a:
- Responsive Declaration (Form FL-320)
Proof of Personal Service (Form FL-330)
STEP 6. File the Proof of Service form at the courthouse:
The court clerk will stamp the copy “Filed” and return it to you. This is proof that the service requirements have been met.
STEP 7. Call Family Court Services to learn how to complete Orientation to Mediation.
When You Come to Court:
- Bring a copy of all the papers in your case.
- Also bring documents that will help you to prove the information in your Declaration.
- If you have any witnesses, they should also be present.
After Your Court Hearing:
If the judge decides to grant child custody and visitation orders, he or she will ask the parent who started this motion to prepare an “Order After Hearing.”
In most cases, you have to pay a fee to file papers with the court.
If a person can’t afford the court’s filing fees, there are forms he or she may file asking permission to not pay all or some of the court fees and costs. This is called getting the fees “waived,” and fee waiver packets are available at the courthouse for free, or can be downloaded from this site.
Eligibility for the fee waiver is based upon the person’s household income or if he or she is receiving public assistance. If a person files a fee waiver but is found not to be qualified, he or she must pay the appropriate filing fees.
To see if you qualify for a fee waiver, read:
- Information Sheet on Waiver of Court Fees and Costs
If there is a court case, and you do not reach an agreement on your own that is submitted to the court, the judge can make decisions without hearing your side of the case.
If you want to avoid going to court and still have a chance to affect the judge's decision, then you and the other parent must show that you have been able to reach a full agreement on all the parenting issues.
When parents reach this kind of agreement and give it to the court this is called a stipulation. Parents can file their full agreement as a
- Both parents must sign the agreement (“stipulation”) and – if you don’t have attorneys – both signatures must be
Use the form below to tell the court you have reached an agreement on your own.
- Stipulation and Order for Custody and/or Visitation of Children
See the instructions for this form.
- If you have a court date scheduled, you can bring the stipulation (Form FL-355) with you to court to submit for the judge to sign. Or you can go to the courthouse where your case is open and ask a family law clerk how to get it signed.
After the judge has signed the stipulation, you make 3 copies of it and then file the original with the court clerk. (There will be a filing fee)
- The clerk will keep the original and stamp your copies and return them to you.
You must then
- As with all “service,” you cannot serve your own papers. Another adult (18 years or older) who is not involved in the case could be asked to serve the papers.
Finally, you must ask the person who served the papers to fill out a:
Then, the Proof of Service must be filed with the court clerk.
- Remember to keep a copy of the Proof of Service for yourself.
If you can’t make the court hearing, you may be able to ask the court to reschedule the hearing. This is called a “
A request for continuance should be made as early as possible, but at least 5 calendar days before the hearing date.
- You must ask the other parent for the continuance. If he, she or it refuses, you have to file what is called an “
ex parte motion” to request the court give you a continuance.
- If continuances are requested too late, then the request must be made in person on the scheduled court date.
- Normally, no more than three continuances will be granted.
Special Rules for Military Personnel
If the reason you can't attend the hearing is because you are in the military and are deployed or expect to be deployed, the court must make special arrangements for you. These include:
- Holding a hearing to determine custody and visitation issues before your deployment; or
- Allowing you to give your testimony and evidence, and participate in court-ordered child custody recommending counseling or mediation, electronically. This could include telephone, video conferences, and use of the internet as long as the rights of everyone involved in the case are protected.
NOTE: The rules for people in military service are complicated. You may want to consult a lawyer with experience in representing military families in family court to make sure your rights are protected.
The court’s first concern when deciding the custody or visitation of children is the health, safety and welfare of the child.
California also wants to make sure that children have frequent contact with both parents after the parents have separated or ended their relationship. California encourages parents to share the rights and responsibilities of child rearing.
Custody is granted in the following order, according to the
- To both parents jointly, or to either parent.
- If to neither parent, to the person or people with whom the child has been living; or
- To any other person or persons the court decides is able to provide adequate and proper care and guidance for the child.
You may bring a witness to court to testify if the person is properly qualified and the information he or she will provide is relevant to the issues. You may also give the court written testimony of a witness that is prepared as a declaration. You may use this form:
- Declaration (Form MC-030)
If you decide to bring a witness, give some thought to what you expect him or her to say, and how that is important to the orders you want the court to make. Remember that the court time is usually very limited, so be sure the information the witness will provide is helpful and relevant.
Prepare, file and serve a witness list
If you intend to call live witnesses at your hearing you must prepare a witness list before the hearing. This list must include the names of all witnesses you intend to call, as well as a brief description of their expected testimony.
Once you have finished this list:
- Make two copies of the list - one for the court and one for the other party in this case. Then take (or mail) the original and two copies to the court to be filed by a court clerk.
- You must serve a copy of this list on the other party.
- Make sure your witnesses know how to find the court and what time to be there. It might be a good idea to give them a copy of the checklist on this website for how to dress and how to behave in court.
NOTE 1: If you do NOT file and serve a witness list before the hearing, the court may postpone your hearing to a later time. The court could also make temporary orders to be obeyed until the new hearing takes place.
NOTE 2: If a child wants to testify, special rules apply.
Children will sometimes want to talk to the judge directly about their wishes for custody. Any child custody counselor, evaluator, investigator, or child's lawyer who knows that the child wants to talk to the judge must tell the court.
There are special rules to decide if the child can address the court.
NOTE 1: It is the child's choice to testify-- not the parent’s.
NOTE 2: While the child may talk in the judge’s chambers with only the judge and a reporter present, there always has to be a written record of what the child said. This has to be available to both parents.
If the Child is 14 Years of Age or Older
If a child who is at least 14 years old asks to be heard by the court, the court will allow it. This is true unless the court finds reasons this would not be in the child’s best interests, including:
- It would emotionally harm the child to testify;
- The child was manipulated into asking to testify.
If the Child is Less Than 14 Years of Age
If a child who is less than 14 years of age asks to be heard by the court, the judge will have to decide whether or not it is in the best interests of the child to testify. The judge will consider:
- Whether the child is able to reason and tell the truth about his or her wishes regarding custody.
- Whether the child can understand what it means to testify.
- Whether allowing the child to testify will put the child at emotional risk.
- Whether refusing to allow the child to testify will put the child at emotional risk.
- Whether what the child is going to say is relevant to the court’s decision.
- Whether any other factors weigh in favor of or against having the child address the court.
If the judge decides the child can address the court, it will then decide how this will be done. Before allowing a child to be called to testify, the court will look at other ways to get the child’s input, including:
- Having the child participate in child custody counseling. The court can receive information about the child's wishes through the counselor.
- Appointing a child custody evaluator and receiving the information from the evaluator.
- Receiving evidence about the child's wishes from the parents, parties or other witnesses.
If the Child is Allowed to Testify
If the judge decides that it is in the best interests of the child to allow the child to testify, it must then decide on the process. The court wants to protect the child from embarrassment, harassment, repeated questioning or emotional harm. Testifying is stressful for all witnesses, and much more so for a child than an adult.
There are three ways the child may testify:
- In the courtroom, in the presence of the parents, their attorneys, and other interested parties;
- In a sealed courtroom where only the parents and their attorneys are present;
- In private, in the judge’s chambers. If the testimony takes place in chambers, there must be a reporter to make a record of the child’s statements.
The decision will be based on the maturity of the child, the content of the testimony, and the child’s comfort level.
The court will make sure that the process is handled in an age-appropriate way, and that the child understands that their testimony will not be a secret. The court may appoint a lawyer for the child to be sure that the child’s rights are protected
If the Child is Not Allowed to Testify
If the judge decides not to allow the child to testify, he or she must provide another method to hear the child’s wishes. The information about the child’s wishes must:
- Be in writing and fully document the child’s views;
- Describe the child’s input in enough detail to help the judge make a decision;
- Be provided by someone who can testify in court and be available for cross-examination.
Lawyers, parties, witnesses, jurors, or other people with a disability are allowed to make confidential requests for accommodations from the court.
If you have a disability and would like to request an accommodation, you may fill out a:
- Request for Accommodations by Persons With Disabilities and Response (Form MC-410)
See the instructions for this form.
- You can also make a request for an accommodation by writing a short letter to the court OR
- You can go to the court, ask a clerk for the form, fill it out, and return it to the clerk that same day.
Requests can be made at any time. You should give the court at least 5 court days’ notice if possible.
Over time, parents may need to change their parenting plan. Some reasons for this include:
- One or both parents has a new partner or spouse;
- One parent plans to move far away from the other parent;
- The schools in one parent’s area no longer meet the children’s needs;
- The primary care-taking parent needs to devote more time to school or a career;
- One or more children develop a serious discipline problem in one home;
- A child wants to change his or her primary residence, or start spending more equal time with each parent; or
- The primary care-taking parent is violating existing orders.
Some parents set up regular reviews of their agreements once a year, or when their children change schools, or as their children reach certain ages.
It is best if the two parents can agree on the changes they would like to make. If they agree, the court does not need to be involved at all. If the parents do not agree about the changes, they may need to hire a private mediator to help them sort out their differences.
If big changes are made to the parenting plan that the court approved before, you may want to change existing court orders so that the new agreement is enforceable. Another reason to request a change to the court order is if the parents cannot agree on changes to the parenting plan.
A parent may want to move. If the new home is far away, the custody and visitation plan may no longer be possible.
Sometimes, parents are able to reach an agreement on their own about how to share and divide their time and responsibilities in the new situation. In other cases, parents need to take this issue to court. Predicting what a court will do in these cases is very difficult. In some situations, a court might approve the move. In other situations, the court might order that the child will live with the parent who remains in the same community. The court may make new custody and visitation orders.
This is the kind of situation where it may make sense to consult with a lawyer who specializes in these cases. Find low-cost legal aid.
Courts do look at several factors when deciding whether the move will be in the child's best interests, including:
- How far apart the two homes will be;
- Whether the child can sustain a relationship with the other parent;
- The child’s attachment to each parent;
- The child's attachment to their community;
- How much each parent is involved in his or her child’s daily life;
- The reason for the move;
- The child’s wishes.
Usually, when courts approve a move it is because the moving parent:
- Has been the main caretaker;
- Discussed his or her plan to move with the other parent;
- Is willing to share in transportation costs for visits to the other parent;
- Is willing to allow ample visitation with the other parent;
- Will help the child maintain a relationship with grandparents, other relatives, and friends, and
- Has never prevented the child’s visitation schedule with the other parent.
NOTE: If the move changes the amount of time the child spends with each parent, the child support amount will need to be recalculated. The court may also consider visitation travel expenses when modifying the child support order.
When a judge makes an order regarding child custody and visitation, this order has the force of law. For this reason, it is very important that you:
- Keep a copy of the current court order
- Make sure you get a new court order if you and the other parent agree to make significant changes related to how much time your child will spend with each parent; where both parents will live; where your child will go to school, get medical care, or religious training; how you will manage exchanges; or how you will make sure a child's other needs are met.
If you have a child custody order and the other parent is not following that order, your local police or sheriff's department may be able to help. You may also consider getting help from your local District Attorney's office.
NO. Access to the child for visitation is not a requirement for the payment of child support.
If you are having trouble seeing your child when you are scheduled to do so, or if the other parent is preventing you from seeing your child according to the court order, you will have to go to court and inform it of the other parent's refusal to cooperate. Before the judge will hear evidence about visitation, you may be required to go back to court mediation.
Sometimes, a custody and visitation order will require a parent to attend a batterer's program, a substance abuse program, or some other support program.
After a parent completes the requirement, he or she can ask for a change to the order. Whether the court will make a new order will depend on the issues involved.
- Domestic violence cases: Usually, a judge cannot give child custody to a person who has committed domestic violence, unless it is in the best interests of the child. However, the person who committed the abuse must first complete a 52-week batterer’s program. He or she must also not commit any other domestic violence.
- Drug or alcohol abuse cases: The judge might consider changing child custody and visitation orders if the person has completed an alcohol or drug abuse program and followed all the terms of probation, parole, or restraining order.
If one of the parents dies, or is unable or refuses to take custody, or has abandoned the child, the other parent is entitled to custody of the child. (See California Family Code, Section 3010)
The parent who remains, however, may find that others want to have a much larger role in helping to parent or raise the child. Depending on the situation, these issues can be handled as part of a family law case, or they may be raised as part of a
Because these issues can become complicated quickly, and each party's rights and responsibilities can be different in different kinds of cases, this may be a good time to consult with an attorney. Find an attorney.