How to File for Temporary Custody in California
By Wayne Thomas
Updated March 30, 2020
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In California, after filing for divorce, a couple must wait at least six months before a final judgment will be issued. During this time, important issues such as child custody may be addressed through temporary orders. Although temporary custody orders typically require the participation of both spouses, the state allows certain emergency orders to be issued without your spouse's presence.
Overview of Custody
California's divorce paperwork requires that parties with minor children include the names and ages of each child and propose a custody arrangement. The state recognizes both physical and legal custody. Physical custody refers to where the child stays overnight, and legal custody refers to the authority to make major decisions for the child, such as those related to health care, religion and education. You must note in your documents whether each type of custody should be shared or held solely by you or your spouse.
Order to Show Cause
If and your spouse can agree on a custody arrangement while your divorce is pending, you do not have to involve the court. Otherwise, you will need to request a temporary order from the judge. This begins with completing and filing an order to show cause. This form is available from the courthouse, and it requests that the court hold a brief hearing during which a judge will order a temporary custody arrangement. Temporary hearings are usually brief and concise in comparison to the actual divorce trial because temporary orders are just that -- they're subject to change at the time your divorce is final. State law requires that you and your spouse attend mediation before the hearing to attempt to reach an agreement. At the hearing, you can address the court and you will probably have to answer questions from the judge.
Role in Permanent Orders
Despite being ordered on limited information and after only a short hearing, temporary orders don't always change. They may form the basis for permanent orders, carrying over into your decree. One reason for this is to promote consistency and avoid disruption in your child's life. When a judge issues a permanent order in your decree, he is required to base his decision on the best interests of your child. This involves considering several factors outlined in state law, including the nature and amount of contact your child will have with each parent and which parent is better able to provide adequate care and guidance. If one parent is given sole custody on a temporary basis while the divorce is pending, it might prove difficult for the other parent to demonstrate to the court that the child's best interests support a change, particularly if the arrangement has been working.
In limited cases, you may seek a temporary order on an emergency basis if you can show that waiting for the court to schedule a hearing will lead to irreparable harm to your child. You can indicate in your order to show cause that the situation is an emergency and explain why. By law, you must usually give your spouse 24 hours' notice before you file. This provides him with an opportunity to attend the hearing and object. In cases where there is a threat to your child, however, the order can be issued without notice to your spouse. This is reserved for extreme cases, such as those involving domestic violence or immediate threats to leave the country with the child. These emergency orders expire after 15 days, by which time a hearing with the participation of your spouse must be held.
Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."