Child Custody And Parenting Time (Visitation)
When parents separate, they have to make decisions about custody of their children and parenting time (also called "timeshare" or "visitation").
If you cannot reach an agreement with the other parent about a parenting plan, usually one of you has to ask the court to make an order.
Parenting plans can vary depending on what is in the best interest of your child, and what you, as parents, agree to.
A good way to learn about what should be in your parenting plan is to look at the court forms for custody and visitation, like the Child Custody and Visitation Order Attachment (Form FL-341) and the Child Custody and Visitation Application Attachment (Form FL-311).
You may also find it helpful to watch the San Mateo Superior Court's Parent Orientation class slides. The class is required if you have to go to court about parenting issues but reading the slides can help you even if you don't need to go to court.
These forms can also help you when you think about your parenting plan:
- Supervised Visitation Order (Form FL-341(A))
- Child Abduction Prevention Order Attachment (Form FL-341(B))
- 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))
These forms talk about plans that include weekdays, weekends, holidays, vacations, cost of transportation for visitation, and restrictions on traveling or moving with the children.
Additional Resources and Guides for Custody and Parenting plans:
The Los Angeles Superior Court has created some guides to help you think about your parenting plan, including guides that apply to children of different ages. Please click on the links below for more information on parenting plans:
- General information on creating a parenting plan
- Creating a Parenting Plan: Children under 3
- Creating a Parenting Plan: Children Three to Five Years
- Creating a Parenting Plan: Children six to nine years
- Creating a Parenting Plan: Children ten to thirteen years
- Creating a Parenting Plan: Children 14 to 18 years
- Creating a parenting plan for holidays and vacations
Another great resource is Families Change - A Guide to Separation and Divorce. It is an online guide with 3 versions-one for parents, one for children, and one for teens and pre-teens.
And see also the Parenting After Separation course.
If you already have an agreement in your case and do not want to go to court, you can usually write up your agreement, have a judge sign it, and file it with the court. If you have an agreement in a family law case and want information to write it up, go to the Family Law Facilitator.
If you and your child's other parent cannot agree to a parenting plan or need help from the court, one of you will have to file papers in court to ask for a court date and attend Family Court Services child custody recommending counseling.
To ask for a court date you must have a new or existing case with the other parent of your children for one of the following as appropriate:
- Divorce or legal separation (visit our page for information on divorce & legal separation)
- Parentage (paternity)
- Domestic violence restraining order
- Petition for Custody and Support of Minor Children
- Child support case with the local child support agency
If you don't have one of these cases and need to start one, or if you are not sure, talk to the Family Law Facilitator.
- You can also visit the California Courts website page that will help you open one of these types of cases.
If you have one of these cases in San Mateo and want to get your first custody and visitation order OR want to change an existing order, follow these steps:
- Fill out a Request for Order (FL-300). You can use the Information Sheet for Request for Order (FL-300-INFO) for information.
- You can also fill out the Child Custody and Visitation (Parenting Time) Application Attachment (Form FL-311). It is an optional form (you do not have to use it), but you may find it helpful in making sure you do not leave anything out of your request.
- If you have a parenting plan or proposal for the custody and visitation orders you would like the judge to make, attach that too.
Self-Prep & File
Click for a computer program that can help you fill out all these forms by answering simple questions.Image
- Make at least 2 copies of all your forms.
- File your forms with the court clerk.
- Get your court date and contact Family Court Services to schedule a child custody recommending counseling appointment date, which will happen before your court date.
- You must serve your papers on the other party, AND file the Proof of Service, before you can schedule your appointment. See the next step for more information on serving papers.
- Serve your papers on the other parent.
- Have someone 18 or older, not you, serve the other parent before your court date with a copy of your papers and include a blank Responsive Declaration to Request for Order (Form FL-320). Look at the front of Form FL-300 to see if the court ordered you to serve any other documents.
- If your papers are served in person, they must be served at least 16 court days before your court date.
- If your papers are served by mail, they must be served at least 16 court days plus 5 regular days before the court date.
- Personal service is always allowed. But read Information Sheet for Request for Order (FL-300-INFO) to see if you can serve your papers by mail.
- File your Proof of Service.
Don't Forget: As soon as you do this step, you must schedule your child custody recommending counseling appointment!
- Complete a Parent Orientation Class before your Family Court Services child custody recommending counseling appointment if this is your first time going to recommending counseling. You will get a certificate saying you completed the class. Take this certificate with you to your Family Court Services appointment.
- Go to your recommending counseling appointment and your court hearing.
- If you reach an agreement in child custody recommending counseling, the Family Law Facilitator can help you write it up so the judge can sign it and you will have a court order.
- If you do not reach an agreement, the recommending counselor will make a recommendation to the court and you will go in front of the judge who will make a decision in your case.
IMPORTANT: Follow the court order.
If it is not working and you need to make changes, you have options:
- You can work with the other parent on your own to reach an agreement. If you are able to, you can write that agreement up, sign it, and have the judge sign it. That way it will become your new court order.
- You can hire your own private mediator or contact the Family Law ADR Program to find a low cost mediator to help you reach a new agreement and court order.
- Look for private co-parenting counseling resources that may be able to help you and the other parent work on a parenting plan that works for your family.
- You can go back to court and explain what has changed and why you need changes. To change an order, just follow the same instructions.
When you ask the judge to make an order about custody and parenting time, the judge will likely first refer you to Family Court Services. In San Mateo County, Family Court services provides child custody recommending counseling for families that have a custody and visitation disagreement. It is a free service and is provided by mental health professionals and social workers who have education and experience in working with families, children, and custody issues.
- To learn about the process of Child Custody Recommending Counseling, read the Child Custody Information Sheet-Recommending Counseling (FL-313-INFO).
Parent Orientation Class
Before your first mediation/child custody recommending counseling appointment, you will have to go to a Parent Orientation Class. It is mandatory. It will help you know what to expect at your recommending counseling appointment. Visit the Parent Orientation Class page to learn more about how you can complete this requirement.
Keep in mind that child custody recommending counseling is confidential. But, if the parents cannot reach an agreement, the Child Custody Recommending Counselor must write a report and make recommendations to the judge. Both parents, and their lawyers, will get copies but the report stays in the confidential part of the court file. If the parents reach an agreement, the Counselor does not write a report for the judge.
- If you want private confidential mediation to try to work out an agreement, you can hire your own mediator or contact the Family Law ADR Program to find a low cost mediator or arbitrator to help you.
- Visit the Family Court Services page to learn more about child custody recommending counseling in San Mateo County.
In cases of domestic violence, you can ask to meet separately with the recommending counselor. You can also bring a support person with you.
Watch a video about Family Court Mediation and Child Custody Recommending.
There are two types of custody:
- Legal custody: how parents make the important decisions about health, education, and welfare of their children.
- Physical custody: where your child lives.
Each type of custody can be sole (only one parent) or joint (shared between the parents). Here are options:
(How parents make decisions about the child's health, education, and welfare)
(Where the child lives)
|Sole||Only one parent has the rights and responsibilities in making decisions.||Children live with one parent most of the time and have visitation or parenting time with the other parent.|
|Joint||Both parents share the rights and responsibilities in making decisions.||Children live with each parent for a specified period of time. It does not have to be exactly 50/50.|
There are many types of parenting time or timeshare/visitation orders, depending on what is best for your child, their ages, and what makes sense for the parents given everyone's schedules, living arrangements, and more.
In general, parenting time can be:
- According to a schedule: The parents have a schedule they follow that states the days and times that the children will be with each parent. It can include holidays, special occasions, and vacations.
- Reasonable: This usually means that the parenting time is open-ended and there isn't a detailed schedule both parents have to follow. This works well if the parents get along, communicate well, and can stay flexible. But when there are disagreements or misunderstandings, an open schedule like this can cause problems since there is no written guidance as to what to do when communication breaks down.
- Supervised: This is used when the children's visits need to be supervised by the other parent, another adult, or a professional to ensure the children's safety, comfort, and well-being. Sometimes it is used when a parent has been absent from the child's life for a long time and the child and parent need time to get to know each other again, slowly, with the help of someone present that the child feels safe with.
- No visitation: This is very rare, but it is used when it would be emotionally or physically harmful for the child to have visits with the parent, even if it were supervised. The court has to decide that it is in the best interest of the child not to have any contact with the parent. Most often that parent must fulfill certain requirements before getting visitation.
The law says that judges must make orders about custody and parenting time (visitation) that are in the best interest of the child.
To decide, the judge looks at:
- The age of the child,
- The health of the child,
- The emotional ties between the parents and the child,
- The ability of the parents to care for the child,
- Any history of family violence or substance abuse, and
- The child's ties to school, home, and their community.
The law also prefers parenting plans that provide for frequent and continuing contact between the child and both parents unless this is not in the child's best interest.
Parents can make agreements between themselves which the judge will usually approve. Or, if parents cannot agree, they may have to go to court. If you go to court, before the judge makes a decision, you will have to participate in child custody recommending counseling with the court's Family Court Services.
There are special laws that apply to child custody in cases of domestic violence. Read about it in Domestic Violence and Child Custody.
Sometimes, one of the parents wants or has to move out of the area. This can affect parenting plans if they move so far away that they can no longer follow the same parenting time schedule.
If the parents can agree on a new parenting plan, they can write up their agreement with the help of the Family Law Facilitator and get the judge to sign a new order. But, if the parents cannot agree on a new plan, they will have to go to court.
The law on these types of cases, called "move away cases," is very complicated and changing. You should talk to a lawyer if you need to move away with the children or you are worried that the other parent will move away with them.
In general, a parent who has a permanent order for sole physical custody can move away with the children, unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case.
If the parents have joint physical custody of the children and one parent does not want the children to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.
Keep in mind that, although the physical custody label ("joint" or "sole") you agree to in your parenting agreement is important, if there is a dispute, the court will usually look at the actual parenting schedule at the time of the move, rather than rely on the schedule the parents put in their parenting agreement.
You should talk to a lawyer if you are planning on moving away or think the other parent may want to move away with your children.
A grandparent can ask the court for reasonable visitation with a grandchild. To do so, the court has to:
- Find that there is a relationship between grandparent and grandchild and that the bond is such that visitation with the grandparent is in the best interest of the grandchild. AND
- Balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child.
In general, grandparents cannot file for visitation rights while the grandchild's parents are married. But there are exceptions, like:
- The parents are living apart;
- A parent's whereabouts are unknown (and have been for at least a month);
- One of the parents joins the grandparent's petition for visitation;
- The child does not live with either of his or her parents; or
- The grandchild has been adopted by a stepparent.
Read California Family Code sections 3100-3105 to read the law about a grandparent's rights to visitation. These code sections also detail other factors the court must consider before giving visitation to a grandparent. Make sure you read it carefully and talk to a lawyer if you think they may apply to your case.
If you are a grandparent and you are caring for your grandchildren either because the parents are absent or are unable to care for them, go to our website's Guardianship pages to find out if you may want to ask the court to appoint you as the guardian of your grandchildren.
To get more information on how to ask for visitation as a grandparent, check out the California Courts web pages on Visitation Rights of Grandparents.
- If you need help with your custody/parenting time request or change, you can visit the San Mateo Court Family Law Facilitator.
- To get help working out a parenting plan through private mediation, the San Mateo Court offers low cost mediators and arbitrators that can help you. To learn more, visit our Family Law Alternative Dispute Resolution (ADR) Program page.
- Keep in mind that this is different from Family Court Services. The Family Court Services counselor will make a recommendation to the judge if you and the other parent can't reach an agreement about parenting. This service is free, and required by the court if you or the other parent asks for a court order because you cannot agree on a parenting plan. Click to learn more about Family Court Services counseling (called child custody recommending counseling).
- Kid's Turn has workshops for children and their parents to help families cope with separation. The classes are free for children, and on a sliding-scale for parents. They offer workshops in the Peninsula and South Bay, as well as other parts of the Bay Area.
Check out Families Change - A Guide to Separation and Divorce. It is an online guide with 3 versions-one for parents, one for children, and one for teens and pre-teens.
- And check out too the Parenting After Separation course.
- Visit our Videos and More Help to find step-by-step form instructions from other counties in California that can help guide you.
- Visit the California Courts website Custody & Parenting Time pages to get more information, instructions, forms, and more.