Family Law Overview
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Carlsbad Child Custody Attorney
A divorce is often one of the most challenging experiences a family can undergo, and it tends to be especially painful for children. However, regardless of the circumstances of the divorce or the quality of the current relationship between you and your ex, you are both required by law to continue providing for your child financially, physically, and emotionally after your marriage dissolves. To ensure you both fulfill your legal obligations, you will develop a child custody agreement to determine your child’s legal and physical custody and set the terms of this arrangement. Child custody refers to the set of rights and responsibilities you and the other parent have to take care of your children and meet their needs until they become adults.
Review the following information to learn more about how child custody is determined in California, then contact an experienced Carlsbad child custody lawyer to prepare your case and represent you during the support hearing. Paula D. Kleinman can empower you with the legal knowledge, support, and litigation skills you need to confront this challenging situation and reach a mutually beneficial resolution for your family.
When Can I File for Child Custody?
To create a custody agreement for your child, you and your ex must obtain a court order from a family law judge, which requires opening a family court case. The kind of case you will begin depends on whether you and the other parent are married or registered domestic partners.
If you do not already have an open case and you and your ex are married or in a registered domestic partnership, you can request a custody order after filing for divorce, legal separation, or annulment and obtain a temporary custody order while waiting for a judge to make a final judgment in the divorce case. After you open the divorce case, you can then request a court date for the custody determination. If you want to determine custody without filing for a divorce, you can file a Petition for Custody and Support of Minor Children to allow the court to create a custody order.If you and the other parent are not married or registered domestic partners, you can request a custody order after the results of a parentage (paternity) case or after you and your ex sign a voluntary Declaration of Paternity.
If you are already involved in a child support enforcement case with your local child support agency, they can request a custody order after you meet specific requirements. For example, if you were the victim of domestic violence and plan to file for a restraining order, you can ask for custody of your child at that time, regardless of your marital status.
What Are the Steps in a Child Custody Case?
To file a child custody case with the family law court, follow the steps below:
- Communicate With the Other Parent
The first step in any child custody case is for both parents to communicate about their issues. Ideally, they should cooperate and collaborate outside of the courtroom to reach an agreeable custody and visitation plan that meets the child’s needs and allows them to be active parts of their child’s life. If you are on good terms with your ex, you can explore options such as mediation to create a parenting plan for your child without initiating an expensive, contentious custody battle. After a family court judge approves and files this plan, it becomes a legally binding and enforceable court order, and you are both expected to fulfill the terms of the agreement or face penalties from the court.
- Hire an Attorney
If you cannot negotiate an agreement on your own, you should contact a Carlsbad child custody lawyer right away for legal representation. You will need to file a formal request with the family court to begin the process of a custody determination, and a lawyer can be incredibly valuable when retained at the very beginning of this process. They can explain the court’s laws, rules, and procedures, outline how specific judges make determinations, help you prepare your case, and advocate on your behalf during the custody hearing.
- File a Petition for Child Custody
After you have an open family court case, you can file a petition for child custody (Request for Order) with your local court, typically in the state where you currently reside and where your child has resided for a minimum of six months. Your Carlsbad child custody lawyercan help you gather the information you need to complete the petition and direct you where to file it. A Request for Order should include:
- Identifying information for both parents
- The child’s name, Social Security number, and birth date
- Information about other family court cases (divorce, paternity, child support, etc.)
- The child custody arrangement you are currently following
- Your proposed child custody arrangement or parenting plan
- Details that support your claim that the proposed arrangement or plan reflects the best interests of the child
- Your request for court intervention
After your attorney reviews the Request for Order to ensure it has been fully and accurately completed, you will bring the original form and at least two copies to the local court clerk for filing, along with a filing fee. They will submit the original petition and stamp the copies with “Filed” before returning them to you, so you have one copy for yourself and one copy to serve to the other parent. If you cannot afford to pay the filing fee, you may submit a “fee waiver” form explaining your situation, and the judge will review this form to determine if fees should be waived.
The court clerk will typically give you a court date for your child custody hearing at this time or mandate that you and your ex attend meditation first.
- Serve the Document to the Other Parent
After your petition is filed with the court, you must complete “service” of the petition, meaning you must serve a copy of the form to the other parent before the court date, in addition to a blank Responsive Declaration to Request for Order form. You are prohibited from performing this service yourself, so you can hire a private process server to do so or ask your lawyer or local sheriff to serve the petition for you.
If Item 7 under the “Court Order” section on your Request for Order is checked, the petition must be served at least 16 court days before the date of the hearing. If any other items in this section are checked, you must have the other parent served in person. If there are no checks in this section, you may serve the other parent by mail, but this must occur 16 court days before the hearing plus an extra five calendar days to accommodate mailing time. Check with your Carlsbad child custody lawyerif you are unsure about this step.
- File Proof of Service
Ask the person who served the court order to fill out a Proof of Personal Service form and return it to you so you have proof that the other parent was notified and can file it with the court. If you served the form by mail, they must complete a Proof of Service by Mail instead. You can ask your attorney to review this form before filing to ensure it was completed correctly.
After being notified of the petition, the other parent has 30 days to review the document, hire an attorney, and respond with a completed Responsive Declaration to Request for Order form. If the other parent fails to do this within 30 days after receiving the document, the judge will presume that they agree with the petition and likely issue a default judgment that awards custody to you as long as the proposed arrangement meets the best interests of your child.
- Attend the Mediation and Court Hearing
If you are ordered to complete mediation before the custody hearing, you may be required to attend a mediation orientation class beforehand to learn information about child development, how to create an effective parenting plan, how the court operates in your area, and any other resources available to help you with this process. If you and the other parent can reach a custody agreement in mediation, the mediator can help you create a parenting plan that the judge can sign to make it a court order. If you cannot negotiate an agreement in mediation, you will both be expected to appear at the court hearing so the judge can determine your case.
The number one priority of a judge in a child custody trial is to make the right decision based on the child’s best interests. The judge will take several factors into account when making this decision, including:
- The age, physical health, and mental well-being of the child
- The child’s connections with their home, school, and local community
- The child’s relationship with each parent and their siblings
- The desire of each parent to retain custody
- The capacity of each parent to provide for the child’s necessities, such as food, shelter, clothing, and health care
- Any special needs the child has, including physical, developmental, behavioral, and emotional issues or sensory impairment
- The mental and physical well-being of each parent
- The willingness of each parent to support an ongoing, meaningful relationship between the child and the other parent
- The wishes of the child if they are mature enough to express a preference (most California courts will consider the wishes of a child 14 years of age and older)
- Any history of domestic violence or substance abuse in the family
- Any other factor the judge deems relevant to the case
At the hearing, you may present evidence that supports your claim to custody, such as witness testimony from therapists or doctors that provide treatment to your child or friends or family who can confirm your ability to care for the child. The type and amount of evidence you need to support your claim will depend on the circumstances of your case, and your Carlsbad child custody lawyer can help you prepare before the hearing, so you have sufficient evidence available and know what to expect during the procedure.
- Obtain a Court Order
After reviewing the evidence and hearing arguments from both parents, the judge will conclude the hearing and issue a final decision. In some courtrooms, the judge will sign a court order at this time, while in others, they will hold you or your lawyer responsible for preparing a court order for the judge as the person who initiated the hearing. If you are obligated to prepare the order, you must complete the Findings and Order After Hearing form and the Child Custody and Visitation (Parenting Time) Order Attachment. In addition, any other orders issued during this time, such as a child support agreement, must also be filled and attached.
You must abide by any temporary orders until receiving the updated court order reflecting the judge’s decision. If you are not satisfied with the custody determination, you have the right to appeal the order. You should consult with your Carlsbad child custody lawyer to decide if there is a valid reason for an appeal and to help you begin this process. Another option is to modify the terms of the agreement, but you must provide evidence that shows a significant change in circumstances. However, if the custody plan places your child at risk, such as allowing the other parent to neglect or abuse your child, you can file an emergency request to change custody on these grounds.
How Much Does a Child Custody Lawyer Cost in California?
Who Is the Best Child Custody Lawyer?
What Is a Lawyer for a Child Called?
In some situations, California law allows the court to appoint a “minor’s counsel” in a custody case to represent the child. This is not necessary for low-conflict situations where the parents can cooperate to reach a fair agreement, but it can become vital in higher-risk situations, such as:
Protect the Best Interests of Your Child
If you are in the process of filing for divorce and want to make sure that you can protect the best interests of your child, contact Paula D. Kleinman today. For more than 20 years, Ms. Kleinman has served as one of the area’s most successful Carlsbad child custody lawyers providing top-quality legal representation for divorcing parents. Our firm understands the importance of creating the right child custody agreement for your unique circumstances, and we are dedicated to delivering the optimal outcome in your case. We offer compassionate, client-focused, and hands-on legal services and can help evaluate the specific details of your unique family dynamic to develop the right solution for you and your child.
Contact Paula D. Kleinman today to schedule a consultation for your child custody case. Whether you and your ex can create a parenting plan on your own or you require mediation services, we can help you negotiate a fair, respectful child custody agreement that meets your child’s needs. In addition, if you are facing a contentious custody battle in court, we will litigate your case, support your claim for custody, and advocate for you to obtain the best results.