Child Custody & Visitation FAQ

• Can I register an out of state custody order in California?
• What is the difference between legal and physical custody?
• What is Family Court Services?
• How do I obtain child custody orders?
• Can I still get child custody orders even though I’m not on the child’s birth certificate?
• Can the court order a paternity test?
• What are typical kinds of parenting plans?
• Do fathers have the same rights as mothers in custody cases?
• I live in Newport or Huntington Beach; does your firm handle cases there?
• Can grandparents or other nonparents obtain child custody or visitation orders?
• What does a best interest analysis in a child custody case mean?
• Does child custody and visitation orders have any effect on child support?

Can I register an out of state custody order in California?

Yes.  An out-of-state custody order may generally have no legal effect in California until it is registered in a California court.  As a general matter, California will register an out of state custody order as long as the state that issued the order had jurisdiction to make a child custody determination in the first place.  Under certain conditions, California courts may even have the jurisdiction to modify out of state custody orders.  Upon notice of registration, the other party has a right to object to the registration based on various legal principals.  Our knowledgeable Orange County child custody attorneys have experience handling cases involving multi-state issues and can help you navigate through this often complicated area of the law.

What is the difference between legal and physical custody?

A parent or parents with legal custody make decisions concerning a child’s health, safety and welfare, including decisions regarding school and extracurricular activities, religion and religious practices and medical decisions.  Usually parents share “joint” legal custody, except in certain circumstances like when one parent has been found to have committed an act of domestic violence.  If the court finds that a parent committed domestic violence, there is rebuttable presumption that the court cannot allow that parent to have any legal custodial rights.  Physical custody refers to the child’s primary residence and the day-to-day child sharing arrangement, which may vary significantly for each family based on their particular circumstances.

What is Family Court Services?

Family Court Services, or FCS, is a program through the Superior Court that provides free mediation services to parents who are going through a divorce or legal separation. The court will not generally make custody orders until the parents have attended FCS mediation. Mediation is designed to assist the parents in developing a plan for how they will share and divide their parenting responsibilities.  In Orange County, mediation proceedings are confidential and the mediator does not write a recommendation to the judge or commissioner in the case.  However, in other counties in California, such as in San Diego County, the FCS mediator does in fact write a recommendation to the judge or commissioner if the parties are unable to reach an agreement in mediation.

How do I obtain child custody orders?

Child custody and visitation issues arise in divorce cases, paternity actions, adoption cases and guardianship matters.  You can request that the court make a child custody determination as part of the order in your divorce, paternity, adoption or guardianship case.  The process for bringing such a motion to the court is generally to file an “Order to Show Cause.”  Upon filing of the motion, two dates are provided to the litigants.  The first date is the FCS mediation date, and the second date, which should be calendared after the FCS mediation date, is the court date.  The parties to an action are generally required to personally appear for such a motion.

Can I still get child custody orders even though I’m not on the child’s birth certificate?

Yes.  Generally, a parent of a child may file a paternity action with the Court, sign a waiver and admission that he is the biological father, and file a request that the court adjudicate the issue of paternity.  Actions to add or change a name on the child’s birth certificate are also common in paternity cases. A paternity case is a type of family law case where children are born to unmarried parents and can arise where there is uncertainty or disagreement regarding the identity of the child’s biological father.  Our highly experienced Orange County paternity attorneys can assist mothers and potential fathers in all types of paternity action.  Whether you are seeking a paternity action to obtain child support, establish custody and visitation rights or to avoid paying child support for a child you do not believe is your biological child, we can help.

Can the court order a paternity test?

A paternity suit is a type of family law case where children are born to unmarried parents and can arise where there is uncertainty or disagreement regarding the identity of the child’s biological father.  It is common for the court to order a DNA paternity test as part of a paternity case.  The test is conducted by a licensed agency that must meet specific requirements to qualify to provide DNA paternity results to the court.

What are typical kinds of parenting plans?

The parenting plan that works to serve the child’s best interest varies from family to family.  Also, the parenting plan that may work best for you depends on the facts and circumstances of your case as well as the timeshare between you and the other parent.  Some parenting plans involve a week-on, week-off schedule in which parents alternate weeks with the child.  Other parenting plans may involve a schedule for alternating weekends plus a mid-week visit or overnight with one parent.  Other parenting plans may allow for afternoon or evening visits with no overnights with one parent.  Many parenting plans also involve a specific holiday schedule, where a child may spend holidays with each parent in alternating years, split certain holidays, and so forth.

The family law attorneys at Wilkinson & Finkbeiner, LLP represent men and women throughout Orange County in all aspects of child custody and visitation arrangements.  Protect your rights by engaging an experienced, compassionate and aggressive family law attorney to represent you.  Our attorneys are innovative negotiators and are dedicated to providing you with professional legal representation in a cost-effective manner to successfully accomplish your goals.

Do fathers have the same rights as mothers in custody cases?

California law grants equal rights to both moms and dads in custody cases.  The court is not allowed to favor one parent over the other based on the parent’s sex.  As a matter of public policy, California law seeks to ensure that children have frequent and continuing contact with both parents as well as make a custody and visitation order that is consistent with the child’s best interest.  

I live in Newport or Huntington Beach; does your firm handle cases there?

Our firm has experience handling family law matters throughout Orange County, including all the coastal cities and communities including Huntington Beach, Costa Mesa, Laguna Beach, Laguna Hills, Mission Viejo, Newport Beach, Seal Beach, Aliso Viejo, Laguna Nigel, Dana Point and San Clemente.  Interestingly, almost all family law cases in Orange County are litigated at the Lamoreaux Justice Center in Orange, which is in central Orange County just off Interstate 5.  A minority of cases are litigated in downtown Santa Ana.  Since our law offices are located only about five minutes from the Lamoreaux Justice Center, we keep your costs down by reducing travel time to and from hearings.  Finally, our offices are technologically equipped and we often conduct business using facsimile and electronic transmissions, thereby reducing the need for our clients to travel to our office if they live a great distance from Santa Ana.

Can grandparents or other nonparents obtain child custody or visitation orders?

It is possible for grandparents and nonparents to obtain child custody and visitation orders if the court finds that such an order would be in the child’s best interest.  However, California law establishes a preference in granting custody to parents.  Because this area of the law can be complicated, if you are a nonparent or grandparent seeking custody, you might consider consulting an attorney to determine your rights and entitlement to custody.

California law also allows for visitation to stepparents, grandparents and former guardians under certain circumstances. Just as with a custody order, the court must find that granting visitation to such nonparents is in the best interest of the child.  Our attorneys have experience representing both nonparents and parents in custody and visitation disputes and we will fight for your rights to custody and visitation.

What does a best interest analysis in a child custody case mean?

California law seeks to ensure that children have frequent and continuing contact with both parents after the parents have separated, dissolved their marriage or ended their relationship.  As a matter of public policy, the court is required to consider the best interest of the child when making child custody and visitation orders.  Generally, the court will consider the following factors when making child custody orders:

-the child’s health, safety and welfare;

-any history of abuse by a parent seeking custody, including abuse against the child and the other parent;

-alcohol or drug use and/or abuse by either parent; and

-the nature and amount of contact between the child and both parents.

Does child custody and visitation orders have any effect on child support?

California has a uniform child support guideline which governs the amount of support a parent is required to pay.  Guideline child support varies depending on a number of factors, including each parent’s timeshare with the child.  This means that the amount of custody and visitation that each parent is awarded has a significant impact on the child support order.  As experienced child support lawyers, our attorneys will fight for your rights in Family Court, Family Support Division, Department of Child Support Services (DCSS) and against the County when setting California child support guidelines or arrears.