If you and your spouse or partner are separated or divorced, you will most likely need child custody and visitation orders. These orders can be obtained by agreement, or if you and the other parent are unable to agree, one of you can file a Motion or an Order to Show Cause with the Court in order to set the custody and visitation schedule. If you and the other parent reached an agreement without a Court order and the other parent is not letting you see the children as much as you would like, you should file a Motion with the Court for a child custody order. If you have a child custody order that you do not like and you would like to modify the existing order to have more time with your children, you may be able to file a request for modification.
Generally, the Court would like for the children to have frequent and continuing contact with both parents. In most cases, the parents will share joint legal custody of the children which means that both parents will share the right to make important decisions about their children’s lives and matters such as healthcare and education. Physical custody orders vary greatly from parents sharing the custodial time on an approximately 50/50 basis to situations where one parent has significantly more time than the other. The factors that go into the Judge’s consideration when making custody orders include things like the children’s ages, the distance between the parents’ homes, and other significant issues that may impact a parent’s ability to care for the children such as parenting skills, possible drug use, and in relevant cases, domestic violence.
If you have an order that does not give you as much custodial time as you would like, and if you decide to request a modification of the existing order from the Court, you will need to explain to the Court in your moving papers why it is appropriate for you to have more time. Be sure to include all of the facts regarding your co-parenting with the other parent, your ability to care for the children, how the custodial schedule will impact the children’s school and extracurricular activities, and other relevant factors. The Judge will consider the circumstances and the best interests of the children when fashioning the custody orders.
In appropriate cases, the Court may also appoint a Child Custody Evaluator, a psychologist who will evaluate your family and make a recommendation to the Court as to what parenting plan is appropriate for your situation. It is recommended that you consult with an attorney in your jurisdiction who will evaluate your situation and give advice related to your particular set of circumstances.
Alex Grager is an attorney that practiced family law in Southern California.