- 2 types of custody in California
- How do judges decide?
- 4 types of visitation orders
- How parents get custody
- How to change a visitation plan
- Fees
- References
In 2021, about 40% of all family households included children younger than 18. When spouses or partners with minor or special needs children separate, they must make critical decisions about where these children will live, who will make decisions for them, and how they'll visit the other parent.
It's best for parents to work together to solve these sometimes difficult problems. Children from high-conflict divorces can develop mental health challenges, including post-traumatic stress disorder, so it’s in the best interest of the child for parents to make an effort to keep the process as smooth as possible.
If you can't agree with your co-parent, courts can step in and make orders regarding custody and visitation. Courts can also help if families change and need to rectify their child-related arrangements.
2 types of custody in California
Married parents automatically have custody of their children. But when those couples split up, they must determine who has custody.
In California, two types of custody exist.
Legal custody
Children younger than 18 require a parent's legal guidance. An adult with legal custody can make choices about the following for a child:
- Health care
- Education
- Extracurricular activities
- Travel arrangements
California courts can ask parents to share legal custody so they make joint decisions for the child. Or, courts can give legal custody to just one parent.
Physical custody
Orders regarding physical custody dictate where a child will live. Some couples share joint physical custody, allowing the child to split time between two residences on a schedule the parents agree to.
Conversely, one parent with sole custody can keep the child the majority of the time. A parent like this is a "primary custodial parent," and the other partner may see the child on a visitation schedule.
Read: What's the Difference Between Legal Custody and Physical Custody?
How do judges determine child custody?
California laws require judges to consider what is in the best interest of the child when determining custody cases. That means one parent (like the mother) doesn't automatically get custody of a child.
"Best interest" is a deliberately vague legal term that allows judges to make plans for individual children based on what is right for them and their families. Children are individuals, and what is best for one might be wrong for another. Judges can take a family's quirks and strengths into account when determining custody cases.
The court can consider the following about the child:
- Age
- Physical and emotional health
- Relationships with parents
- History of a happy life with the parents
- Connection to the community
Unless a parent has neglected or abused a child, parental rights aren't at risk during a custody case. Instead, the court looks for ways to help a child maintain loving relationships with both parents.
Four types of California visitation orders
A parent without physical custody is typically granted visitation. Courts want children to maintain their connection to both parents, and since legal rights aren't severed during custody cases, a non-custodial parent has the right to see a child.
Four types of visitation orders exist, which are as follows:
- Scheduled visitation: Parents (or the courts) develop a schedule for the child to visit the non-custodial parent. Schedules can include details about birthdays, holidays, and vacations.
- Reasonable visitation: Amicable parents can use a looser arrangement to share their children. They must communicate clearly to avoid misunderstandings, but a plan like this can allow parents to adjust as needed.
- Supervised visitation: If a child's safety or well-being is at risk during a visit, courts can ask a third party (like the custodial parent or a professional agency) to remain present.
- No visitation: This type of visitation plan protects children from parents who might harm them, even with supervision, during a visit.
Read: Custody and Visitation Plans in California
How can parents get custody?
Parents get legal custody of children at birth. Typically, they need new custody arrangements when they separate or get divorced. They can either agree to a parenting plan they develop alone or ask the court to help them come to terms both parties can agree on.
Make a request to the courts
Divorces are family law cases in California, and couples typically settle their childcare concerns during this process.
Couples with an open divorce case can ask the courts to make custody arrangements while the case moves forward. Fill out a Request for Order form (FL-300), and ask the judge to rule on an arrangement you outline.
As part of your divorce, you and your spouse have likely traded paperwork about a child's custody. If your requests don't match and you can't agree, a judge will send you to mediation. If you still can't agree, a judge will decide for you during a court case.
Craft a parenting plan
Collaborative couples can create their own arrangements, write them down, sign them, and file them. Parenting plans like this don't require court cases, and judges typically approve them if they demonstrate care and consideration for a child's welfare.
You must include forms with your parenting plan:
- Stipulation and Order for Custody and/or Visitation of Children (FL-355)
- Child Custody and Visitation Order Attachment (FL-341)
- Children’s Holiday Schedule Attachment (FL-341(C))
- Additional Provisions: Physical Custody Attachment (FL-341(D))
- Joint Legal Custody Attachment (FL-341(E))
Take two copies and the originals of all of your forms to the court handling your divorce or separation, and file them.
.png)
Co-parenting? You've got this.
And our free download can help.
How can you change a custody or visitation plan?
Families change, and sometimes, the arrangements you make during a divorce must be altered, too.
The Request for Order (FL-300) form starts the process. Tell the court what you want to change, and outline why it's best for your child. Include your court case number from your divorce or separation on your form.
Attach other forms like Child Custody and Visitation (Parenting Time) Application Attachment (FL-311) if you need more space to outline what you want to change and why.
Make two copies of both of your forms, and take them and the originals to the court to file them.
What fees are involved?
If you're handling child custody concerns as part of your divorce, you may not incur added expenses. Couples file paperwork in bundles with one fee.
If you're changing orders, prepare for a fee between $60 and $85. Some courts may charge more, depending on the specifics of your case.
Watch: Do I have to share custody 50/50 with my ex after divorce?
References
U.S. Family Households with Children by Family Type, 1970 to 2021. (September 2022). Statista.Parental Conflicts and Posttraumatic Stress of Children in High-Conflict Divorce Families. (October 2021). Journal of Child and Adolescent Trauma.
Basics of Custody and Visitation Orders. Judicial Branch of California.
Custody and Parenting Time (Visitation) Orders. Judicial Branch of California.
What You Can File to Ask for a Child Custody and Visitation Order. Judicial Branch of California.
Parenting Plans. Judicial Branch of California.
Ask For or Change a Custody and Parenting Time Order. Judicial Branch of California.
Reconciling Mixed Findings on Children’s Adjustment Following High-Conflict Divorce. (November 2018). Journal of Child and Family Studies.
The Implications of High-Conflict Divorce on Adult–Children: Five Factors Related to Well-Being. (March 2021). Journal of Family Studies.
