Child Custody & Visitation: What to Expect In Mission Viejo, Ca

Understandably, parents of a minor child or minor children often have many questions about custody and visitation, especially when they first separate. I have found that proving parents with insight upfront helps alleviate some of the stress associated with separating when a minor child or minor children are involved. This article is focused on answering the questions I am most commonly asked regarding custody and visitation.

Do I need a Court order?

Sometimes when the parents of a minor child or minor children separate, they come up with an informal agreement regarding custody and visitation. On the other hand, sometimes no informal agreement is reached, which can leave one parent at the mercy of the parent with regard to when, where, and for how long they get to visit their minor child(ren). Even when an informal agreement is reached and both parents are happy with it, I believe it is best to have a court order in place because an informal agreement is not enforceable. Having a court order in place reduces the risk of one parent changing their mind, leaving the other parent without recourse. As a general rule, my advice is to always obtain a court order.

How do I go about obtaining a court order for custody and visitation?

There are two ways to obtain a court order for custody and visitation. A court order can be obtained without the parents ever having to go to court if the parents are in agreement. In that case, the agreement of the parents is set forth in a document called a Stipulation and Order, which is signed by both parents and then submitted to the court for a judge's signature. Once a judge signs the Stipulation and Order, it becomes an enforceable order that the parents can be sanctioned (punished by the court) for not following. If the parents do not agree with each other regarding custody and visitation, a Request for Order (“RFO”) will need to be filed by either parent. The most important part of a RFO for custody and visitation is the moving party's supporting declaration, which should set forth exactly what provisions are being requested and why those provisions are in the best interest of the minor child(ren).

When an RFO is filed, two dates will be scheduled: A mediation date and a hearing date. The parents will be ordered to attend mediation with Family Court Services at the courthouse prior to the hearing date. Mediation is mandatory and sanctions can be imposed by the court for a parent's failure to attend mediation. The purpose of mediation is to get the parents to come to an agreement regarding custody and mediation.

If an agreement is reached at mediation, the mediator will draft the agreement and submit the agreement to the court. At the hearing, the court will sign the agreement making it an enforceable court order.

If an agreement is not reached at mediation, the court will address custody and visitation at the hearing. In some cases, the court may find that further investigation is needed in which case the court may order a Child Custody Investigation (“CCI”), a Partial CCI, or even a psychological evaluation.

Orange County is a “non-reporting” county, which means Family Court Services will simply notify the court either that an agreement was reached at mediation or an agreement was not reached at mediation. The mediator will not draft a report or make a recommendation to the court.

What factors does the Court consider when making a custody and visitation order?

When making custody and visitation orders, the court will focus on what is in the best interest of the minor child(ren). Several factors will be considered including, but not limited to, the child(ren)’s age, the child(ren)’s health, the child(ren)’s needs, and the child(ren)’s bond with each parent. To the extent that it is in the child(ren)’s best interest, the court will come up with a 50/50 parenting plan that facilitates frequent, continuous, and meaningful visitation with both parents. It is not uncommon for judges to say at the outset of a custody and visitation hearing that a 50/50 timeshare will be ordered unless one parent can convince the judge that there is a very good reason not to. As I tell parents all the time, the days of a father almost automatically only getting visitation every other weekend are long gone so if that is your expectation, you will end up being disappointed.

How long does the process take?

Once a Stipulation and Order is submitted to the court for filing, it usually takes a couple weeks to receive a file-endorsed copy back from the court. Attorneys have no control over the court’s timeline for processing documents. COVID-19 caused a significant delay at the courts, but over the past six months or so I have noticed that things are finally starting to happen a little faster than they have been over the past four years.

When a RFO is submitted to the court for filing, it usually takes about a week to receive a file-endorsed copy back from the court. The file-endorsed copy will contain a mediation date and a hearing date. The hearing date can be anywhere from a month and a half down the road to four months down the road, depending on the case load of the judge the RFO is assigned to. If the case does not require further investigation, a custody and visitation order will be made at the hearing. If further investigation is needed (for example, if a CCI, Partial CCI, or psychological evaluation is ordered at the hearing), another hearing date will be set for approximately six months down the road for the purpose of reviewing the investigative report and determining if an evidentiary hearing is necessary. All investigative reports must be provided to the court and the parents at least 10 days before the hearing date.

Can a custody and visitation order be modified after it is made?

Custody and visitation orders can be modified. The burden of proof for modifying an order depends on whether the order is a temporary order or a final order. A temporary order is one that is made before a final trial or that the parents agree is a final order. A temporary order can be modified by showing that the requested modification is in the best interest of the child(ren). Modifying a permanent order requires the moving parent to prove that there has been a substantial change of circumstances that warrants the requested modification.

This can be a sensitive subject for a parent who is unhappy with an order. Often times, the parent who is unhappy with the order wants to file for modification right away, but judges do not appreciate that. In fact, I have heard judges say they are not inclined to modify an order that has not been in place for at least six months because that tells the judge that the parent who is unhappy with the order did not even give the order a chance.

A couple of other issues that I often get asked about when it comes to custody and visitation:

What if the parents are still residing under the same roof with the minor child?

When the parents of a minor child or minor children separate, it is not uncommon for them to continue residing together with the minor child(ren) at least for a while. Generally speaking, courts are not inclined to make custody and visitation orders while the parents and minor child(ren) are still living together. However, given that it may take several months to have a hearing once a RFO is filed, it is okay to file a RFO for custody and visitation while the parents and minor child are still residing together. In that case, the parents should have a plan in place as to when they will no longer be living together so the court has the information it needs to make an order at the time of the hearing. For example, who will be living at each parent’s residence? What are the living conditions at each parent’s residence? How close to the minor child(ren)’s school will the parents be living?

What is the difference between legal custody and physical custody?

Legal custody is who makes important decisions for the minor child(ren) such as health care, education, and welfare. A joint legal custody order requires the parents to confer in good faith about important issues involving the minor child(ren). For example, if a parent wants to change the minor child(ren)'s school, under a joint legal custody order, the parents must have a good faith conversation about it before a decision is made. Joint legal custody is designed to prevent one parent from making unilateral decisions regarding important issues. Courts will always order joint legal custody unless there is a very good reason not to.

Physical custody is who the minor child(ren) live(s) with most of the time. If the minor child(ren) live(s) with one parent most of the time, the court may order sole physical custody or joint physical custody with one parent being designated the primary custodial parent. If the visitation schedule/parenting plan calls for an equal or almost equal timeshare, an order for joint physical custody is appropriate.