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Mastering Child Custody Motions - A Quick Primer

You and your ex differ on some aspect of child custody and visitation. It could be over things like the choice of school for the child or who has more time with the child. In an ideal world, custody disputes would be resolved amicably between the parties. When a mutual solution is not possible, a party is forced to seek relief from the Courts. Below is a break down of what goes into a child custody motion.

Assuming there is an existing divorce, parentage or custody case, in California the party seeking relief has to fill out and sign the FL-300, “Request for Order”, which describes the relief the party is seeking. The relief can be either for a new order or a modification of an existing order. There are boxes to check for a range of issues, including child custody and visitation.

In the child custody section, the parent can state who the children are and what the parent's desired legal and physical custody choices are. Legal custody regards who makes important life decisions for the child, like the choice of school or doctor. Physical custody sets up the primary home of the child. Legal and physical custody can be sole or joint and there are places in the FL-300 where that can be indicated.

The parent can also check off visitation as an area to be ordered. There are a range of forms that a parent can fill out to specify their desired visitation schedule. They can also write their desired parenting plan in an attachment or separate declaration.

The FL-300 has space to identify current custody and visitation orders and specify why the setting of a new order or modifying an existing order is in the child’s best interest.

At the end of the FL-300 next to the place where the parent signs is a section where the parent can state the facts supporting their requested relief. This is a very small space. We always draft a separate declaration to tell the client’s story. In that declaration, or narrative, we state the relief the parent wants, introduce the parents and children to the court, identify important details like when the parents divorced or what the current orders are, and then describe the reasons for the desired relief framing the narrative in light of the best interest of the child. When a court considers the best interest of the child, it doesn’t look to what is convenient or acceptable to the parent but what serves the children best given their needs at the current time. We are detailed in supplying important dates and facts and attach relevant records to support the narrative. Motions are largely decided on the written pleadings. The declaration of the parent is paramount in winning or losing the case and the written testimony needs to be supported by as much documentary evidence as possible.

If necessary, we will also file and serve a legal brief which frames the facts in light of existing legal principles. This can be very persuasive as the Court must do this precise type of weighing process in deciding what to order.

The finished motion is then served on the other side to either the party if they are unrepresented or their attorney. The other side then has a chance to tell their side of the story in a separate document, the FL-320.

In California, custody mediation is required and is provided free by the Court. Custody mediation is a chance for the parents to come together before a court provided custody specialist to hammer out a resolution to the motion. The end result of the mediation is reported to the Court. In most counties, the mediator not only reports on what the parties agreed on, if anything, but also provides recommendations for orders the Court can make for everything the parties did not agree on, usually following a description of the parents’ circumstances and course of the mediation. Most counties are “recommending” counties where the mediator’s report weighs very heavily on the Court’s decision making in rendering its final order. It is a high burden to overcome if the recommendations don’t go your way.

At the hearing, the Court will give each side 10 minutes to present their side in what is known as a “short cause” hearing. Most of the conversation in recommending counties concerns the recommendations of the mediator. Either party can request a “long cause” hearing or trial if they believe a “short cause” hearing is not sufficient to tell their story and if they need to present live testimony and written evidence - things not possible in short cause hearings.

In the end, the Court makes it’s ruling. At a “short cause” hearing it may itemize aspects of the mediator’s recommendations it wants to adopt or order new provisions. The orders are memorialized in what is called a “Findings and Order After Hearing” usually prepared by one of the attorneys in the case at the direction of the Court. Sometimes the Court takes the issue under submission to wrestle with the facts and law on its own some more and then subsequently sends out its own order to the parties.

As you can see, the process of seeing a motion through the trial court level requires a lot of finesse. We haven’t even talked about appeals! At the Law Offices of Jane Migachyov, we have handled countless child custody motions and excel at both the written and oral advocacy needed to succeed. If you’d like to discuss filing or responding to a child custody motion, schedule a free initial consultation directly with the firm HERE.


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