Will the family law judge make temporary child custody and visitation orders during the divorce? Yes. But, you have to ask for it or your spouse has to ask for it so you can get the case in front of the judge.
This is how it works: either you or your spouse will have already filed a divorce petition. One of you will have responded to the other’s petition. Then, if you two cannot work out the custody and visitation issues, one of you will file a set of documents collectively called a Request for Order, which is exactly what it sounds like.
Request for temporary child custody orders
The request for order includes some judicial council forms and a declaration under oath from you that sets forth relevant facts the judge will need to read to understand your position on temporary child custody. The assistance of lawyer experienced in custody cases is important when drafting this declaration. We have seen our share of declarations drafted by self represented parents and rarely is there one that actually hits the most important points in a persuasive way.
This Request for Order will put the case in front of the judge by setting two dates: the first is a mediation date which is mandatory in all California child custody cases. The second is an actual court hearing which is the date the court will make temporary child custody and visitation orders if you and your spouse have not already worked out your dispute.
There are some important things for you to consider.
Attempting settlement before your custody court date is important
Family law judges do not like formal hearings on child custody cases. They would much prefer the parents and the parents’ lawyers find a way to work it out. Why? It is because rarely can a judge get a full understanding of all of your issues when faced with temporary child custody requests. Remember we are talking about orders while the divorce is pending and not the final child custody and visitation order. That means the judge will generally not want to spend the time (many hours or days) putting on a hearing on temporary orders.
There will be exceptions of course and those include complex cases that involve serious abuse, typically domestic violence or child abuse, as well as serious substance abuse or when a child is otherwise in imminent danger while in the custody and care of one parent. Unless you have one of those cases, be prepared to truthfully tell the judge you made a reasonable and good-faith effort to settle the child custody case. If you do not, you may have an upset judge on your hands and you never want that type of Judge making a ruling on anything on your case.
Does that mean you have to settle? Of course not. Do not sacrifice your children’s best interest just to resolve issues. Your children come first and if the matter has to proceed to court, then that is why you experienced family law attorneys like those without our firm to help you.
A temporary child custody order will have a short term focus
The second thing you have to keep in mind is what issues the judge will want to focus on at a temporary child custody hearing. Again, because these are not final orders, the court will not be overly concerned with long term child custody plans. The judge will want to put reasonable orders in place that are consistent with the children’s best interest until all of the child custody issues can be addressed at the time of trial. That doesn’t mean the judge will make hurried or illogical orders. The children’s best interest is still of paramount importance. However, what it does mean is the court will focus on the bigger issues and not minutia when making temporary orders.
For the next question on our list of child custody FAQ, go to How Does a Family Law Judge Make Orders on Child Custody?
If you want some real comprehensive reading to get an in-depth knowledge of child custody laws in California, read our child custody page.
Got any feedback? Contact us and let us know what other questions you have or if you wish to speak with one of our experienced attorneys. Please don’t hesitate to reach out to us by phone or email and we will happily talk with you about the specific facts of your case to determine how we can help you and your children.