Ensuring that children are properly cared for when parents can no longer live together is at the forefront of every custody decision. In California, if you cannot agree on a parenting arrangement with your spouse, you may request the court award sole custody to you. In order to be successful, you must convince the court that this arrangement is in the child's best interest.
California recognizes two types of custody, physical and legal. Physical custody refers to where the child stays overnight and legal custody refers to the ability to make important life decisions for the child, such a those relating to medical care, religious affiliation and education. Both types of custody can be shared between the parties (joint custody) or awarded to one parent only (sole custody). While California, unlike some other states, has no preference for joint custody, in order to obtain sole custody, you still must show the arrangement is in the child's best interest.
The process for filing for sole custody in California depends on whether a divorce or separation is currently pending or about to be filed. If so, you must file a Request for Order (Form FL-300) as well as an Application for Order and Supporting Declaration (Form FL-310) with the court and then have it served on the other parent by someone 18 or older and not a party to the action. This provides the other parent with notice of your request and requires him to appear in court to respond. The process is slightly different if no divorce or separation is pending. In this instance, you must file and serve a Petition for Custody and Support of Minor Children (Form FL-260).
Judges consider several factors when determining whether to order sole custody in California. Grounds for obtaining sole custody might include evidence that the other spouse has a history of domestic violence or habitual substance abuse. Such allegations typically require independent corroboration, for example, through testimony of a family friend or reports from law enforcement. In addition, a judge can consider the unexplained absence of the other parent from the family home or lack of contact with the child as another factor favoring sole custody. Further, you will need to prove that awarding sole custody to you will best serve the individual needs of the child, taking into account the child's age and emotional and physical health. After hearing both sides, a judge will make a decision.
California judges have the authority to order temporary or emergency sole custody if the situation requires. If the parties can agree, they may sign a document indicating their agreement and avoid a hearing. If they cannot agree, the court will generally make a ruling within 24 hours, but a hearing must be held within 20 days. If the other party does not participate, the temporary or emergency order may be extended. It is important to note that a judge may issue an order without the participation of the other parent only in cases where it is alleged that the child will be removed from the state or is in immediate danger of physical harm.