Steps in Determining Child Custody and Parenting Time Orders

If you are seeking a separation or divorce from your child’s other parent, one of the most critical matters you will need to address is child custody, or who your child will live with, as well as parenting time, also called visitation.

Speak with a Family Law Attorney

Child custody arrangements will impact the lives of everyone in your family for years to come, so it is wise to learn more about the process and how these orders are created. Requirements can vary from county to county and speaking with a local family law attorney is often the best way to gain an accurate picture of what the process will look like for you.

Create Desired Parenting Plan

As a parent, you want the best for your child no matter what is going on in your life. To help make this difficult process easier on your child, you should consider the following when negotiating a parenting time plan with your child’s other parent:

• Your child’s desires
• Your child’s needs, such as love, protection, and guidance, a healthy diet, quality medical care, socialization, academics, and adequate rest
• Your child’s age, personality, experiences, and abilities
• What will give your child a sense of security and a reliable routine
• Giving your plan enough detail so that it can be easily understood and enforceable
• Your goal should be to adjust your plan to your children, not your children to your plan

It may seem obvious, but you can’t tell the other parent or the court what you want if you haven’t set clear expectations to begin with. If you’ve never created a parenting plan, there could be items you haven’t considered before that need to be included, like schedules for holidays. Reviewing the parenting plan documents below provided by the state can help you understand what to include:

• Child Custody and Visitation (Parenting Time) Order Attachment (Form FL-341)
• Supervised Visitation Order (Form FL-341(A))
• Children’s Holiday Schedule Attachment (Form FL-341(C))
• Additional Provisions — Physical Custody Attachment (Form FL-341(D))
• Joint Legal Custody Attachment (Form FL-341(E))

Discuss or Negotiate Parenting Plans

Once you’ve formed a clear idea of the custody and parenting time orders you want, you’ll need to communicate those wishes with the other parent. How exactly this happens will vary depending on your situation, but what’s important is getting an idea of how much disagreement exists between the parents. Some divorcing parents are able to amicably work out an arrangement, while other times, it is necessary for a Monterey County family law attorney, mediator, or court to step in and help in the process.

File Plan or Request for Order

If both parents agree on a parenting plan, they can submit the plan to the court for approval. Once approved, the order goes into effect, and the case is essentially over. Filing with the court isn’t always necessary, and some parents choose to move ahead with just an informal agreement. However, if one parent chooses not to follow such an agreement, the courts have no ability to enforce it, so it is usually best to have a court order in place.

If you cannot agree on custody and visitation on your own, you’ll need to file forms requesting that the court issue an order. The exact forms and process to use will depend on factors like whether the parents are married and if a divorce or separation case is already pending. A skilled attorney can help you determine how to proceed.

Serve Papers

The other parent will need to receive a copy of the request for custody through a process known as “serving” the papers. This usually needs to be done by a third party and in person, although some situations allow for service by mail. The parent who receives the papers will have an opportunity to respond and make requests of their own, but a reply is not always required.

Attend Mediation

In custody cases where the parents cannot agree, they may be ordered to attend mediation before their case goes to court. During this process, the parents will meet with a neutral expert (the mediator) appointed by the court, who will attempt to help them resolve their disagreements. In some counties, this is also known as “child custody recommending counsel” because the mediator is able to make recommendations to the court if the parents still cannot agree. It’s important to remember that attending mediation can be required by the court, but you are not required to agree to any plan that is created through mediation.

Attend Court Hearing

If mediation is not enough to resolve the custody or parenting time issues, or it is not an option because of factors like domestic violence, then the parents will have to go before a judge and allow the court to decide. The judge will listen to both sides then issue an order for custody and parenting time. In some counties, the paperwork for the order will be prepared by the court, and in others, it must be prepared by one side or their attorney.

Once the order has been signed by the judge and filed in court, it becomes final. Both parents will have to follow it, whether they agree or not, which is why it is often better to reach an agreement on your own before going to court if possible.

Enforce and Modify Order

If the other parent does not follow the approved parenting plan, you may need help from the court to have the order enforced. An experienced family law attorney can help you make these requests.

Even when a parenting plan works well, it may still need to be changed in the future as your children grow and change, too. Either parent can request a modification to the custody or visitation orders, and they will be responsible for proving to the court that the change is necessary. For example, if one parent wants to move out of state with the child, they may need to show the court that the move is in the child’s best interests.