How to File for Physical Custody in California

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In California, physical custody refers to the parent or guardian that the child will live with most of the time. Physical custody is based on a parenting plan created and agreed upon by the parents. Physical custody can be either joint, meaning children live with both parents, or sole/primary, meaning the children live with one parent most of the time and visit the other parent.
Setting up a physical custody order for your children requires one parent to request it from the court, a process that is determined on whether or not there is an open family court case for your family or not.
The California Courts web site offers an overview of the child custody and visitation process, including procedures for both new and open cases, as well as instructions for what to do in emergency cases.

Open a Case

If you don't have a family law case, begin by opening one. The kind of case you open depends on whether you are married or have a registered domestic partnership with the child's other parent.
If you are married or are registered domestic partners, you can ask for custody or visitation orders in the following types of cases:
  • After filing for a divorce, legal separation, dissolution, or annulment
  • If you have been a victim of domestic violence
  • If you do not want to get a divorce, legal separation, or annulment, but want the court to make custody and visitation orders
  • If you are involved in a child support enforcement case
For parents who are not married to each other, the court website offers information and court forms for requesting custody after opening one of these cases:
  • Paternity cases
  • Domestic violence cases
  • If you have signed a voluntary Declaration of Paternity
  • If you are involved in a child support enforcement case

Steps to Prepare for Court

Once you have an open case, you must set up a court date. Contact a mediator at your court services program before setting up a court date, because in some cases you may be required to go to mediation before you can file any paperwork.
Then, follow these steps to secure a court date and to prepare for the time:
  1. Complete a Request for Order form, identifying yourself and the type of court order you want. The court web site advises that you also complete and attach a Child Custody and Visitation (Parenting Time) Application form. While optional, it can help make sure you don't leave anything off your request, and you can identify details such as schedules for visits and holidays.
  1. Have your court forms reviewed by a facilitator or a self-help center at the family court or by your own lawyer.
  1. Print two copies of your forms. You'll keep a copy for yourself and give the other to the child's other parent. The original goes to the court.
  2. Submit all copies of your form to the clerk of courts. They will keep the original and return the others to you marked as "Filed." You must pay a filing fee or request a fee waiver if you cannot afford it. The clerk will likely provide you with a court date. Be sure to ask if you must meet with a mediator or go to a mediation orientation before going to court.
  3. Serve papers to the child's other parent. The documents will include the Request for Order form, along with a blank Responsive Declaration to Request for Order. A third party must be responsible for serving the papers. Learn more about California's process for serving paperwork here.
  4. Prepare your evidence for court. Go to mediation before your court date if the court has ordered it. If you do not reach an agreement in mediation, you must appear before the judge who will decide your case. To prepare for your court date, gather the evidence or information that you will present to prove your case, including witness testimony from people, and exhibits relevant documents, photographs, or records. The California Courts website offers details on preparing evidence and researching the rules for evidence.
  5. Go to Court. Whether you have a lawyer or you are representing yourself, prepare carefully for your appearance in court – everything from knowing what you should wear and when you should arrive to understanding what you need to do when the hearing is over. Greater Bakersfield Legal Assistance also provides videos and tips for what you should and shouldn't do when you go to court.
After the judge renders his or her verdict on your custody case, a court order will need to be signed In some courts, the clerk of courts will prepare the paperwork, but in other courts, it is the responsibility of the person who asked for the hearing to prepare the paperwork and ensure it is signed.  Make sure you are clear what the next steps are upon the conclusion of the hearing.

TalkingParents blogs are for informational purposes only and should not be construed as legal advice. Always consult with a qualified attorney regarding legal matters.

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