FREQUENTLY ASKED QUESTIONS (FAQ)

1.

Will the Orange County Court make orders on custody and support while the divorce is pending?

2.

How does the judge in my Orange County divorce case decide the custody issues? 

3.

What is physical custody? 

4.

What is legal custody? 

5.

Do judges in Orange County make decisions on custody based on the age of the child or children?

6.

How do Orange County courts in a divorce case make custody decisions when the child or children are less than 3 years old? 

7.

How do Orange County courts in a divorce case make custody decisions when the child or children are between 3 and 5 years old?

8.

How do Orange County courts in a divorce case make custody decisions when the child or children are between 6 and 11 years old?

9.

How do Orange County courts in a divorce case make custody decisions when the child or children are between 12 and 18 years old?

10.

How does the Orange County court in a divorce case typically divide holidays when making custody decisions?

11.

How does the Orange County court in a divorce case typically divide school breaks when deciding custody issues?

12.

What do I do if my spouse intends to take the children out of state?

13.

How can I move with the children to another county or state?

14.

Do judges in Orange County divorce cases permit a child to testify about his or her preferences about custody?

15.

My spouse is keeping the children away from me and refuses to let me see them.  What can I do to see my children?

1. Will the Orange County Court make orders on custody and support while the divorce is pending?

Yes.  After the divorce process has started, either spouse can make requests for temporary child support, spousal support (alimony), and child custody and visitation.  In an Orange County divorce case, before the court makes orders on custody, the spouses must first proceed to mediation.  This court ordered mediation is held at the Lamoreaux Justice Center in the City of Orange.  The mediator, without the presence of the lawyers, sits down with both spouses and tries to help them resolve their custody disputes.

Temporary custody and support issues may change during the divorce depending on whether or not there are any changes that occur in the spouse’s lives while the divorce is pending, both financially and otherwise. 

Temporary orders remain in effect until there is a final judgment (whether by trial or by settlement) in the divorce case.

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2. How does the judge in Orange County divorce cases decide the custody issues?

The judge makes decisions based on information he or she is provided by the parties and often, by the court appointed mediator. 

First and foremost, Orange County judges, like all judges, look at what is in the best interests of the children.  The judge will look at many different factors including the health, safety and welfare of the children, look at the past conduct of the parents in raising the children and will make a decision as to whether one parent should have sole physical custody while the other receives visitation or if the parents should share joint physical custody.  The court also makes a decision on legal custody, which is different than physical custody.  These terms are explained below.

Some of the most important factors the court takes into consideration are:

• Age, gender, and stage of development of the child

• Emotional, social, and educational needs of the child

• Health, welfare, and safety of the child

• Level of communication and cooperation between parents

• Parenting ability and psychological adjustment of each parent

• Quality of the parent-child relationships

• Parental support systems

• Cultural factors

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3. What is physical custody?

Physical custody is simply the timeshare parents have with the child or children. 

Physical custody can either be "joint" or "sole". Orange County courts generally presume that joint custody is in the best interest of the minor child.

Joint physical custody means that both parents share frequent and continuing contact with the children.  A typical joint custody situation is, for example, one week with one parent and the next with the other.

Sole physical custody means one parent has received the primary timeshare with the child while the other has visitation. A typical visitation schedule is every other weekend and a weekday every week.

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4. What is legal custody?

Legal custody is simply each parent’s right to participate in and make decisions about the significant aspects of the children’s lives including the health, education and welfare of the children.  Joint legal custody is common and preferred.  However, there are circumstances such as physical abuse, sexual abuse, serious drug or alcohol issues that could cause a parent to lose legal custody. 

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5. Do judges in Orange County make decision on custody based on the age of the child or children?

Yes.  In fact, Orange County courts have set guidelines that they follow depending on the age of the children.

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6. How do Orange County courts in a divorce case make custody decisions when the child or children are less than 3 years old?

Orange County parenting guidelines state that in order for infants and toddlers to develop secure attachments to their parents, it is critically important that the separation time from the mother and father be small to minimize anxiety, keep attachments secure, and keep the child comfortable with both parents. It is hard for the child to maintain a memory of the parent if the parent is not there. Infants and toddlers have difficulty conceptualizing time and need frequent and continuing contact with a predictable pattern. Separation anxiety is most intense around fifteen (15) to twenty-four (24) months of age. Although it is normal for children at this developmental stage to cry and cling during transitions, most children can be quickly comforted by each parent.

The essential considerations that Orange County courts take into consideration when the child or children are less than 3 years old are:

• Degree of Attachment – Attachment can be defined as the level of trust, security, and bonding in a parent/child relationship. If a parent has not had contact with an infant to 3-year-old child for an extended period of time or has not been involved in the day to day care of the child, contact should start slowly and gradually increase as the child adjusts and feels more comfortable.

• In order to maximize child’s trust and security, it is critical the less attached parent spend significant alone time caring for the child.

• Information regarding the infant/toddler’s diet, medications, daily routine, etc. should be provided by the custodial parent.

• In order to communicate the feeling of security to the child, it is usually best the primary parent deliver the child to the other parent.

• Exchanges are to be done quickly with no excessive delays.

• Security object(s) may go with the child.

• Days of contact should be consistent.

The following parenting plan options for infants and toddlers are guidelines for schedules for the non-custodial parent. These guidelines are based on the degree of attachment with the non-custodial parent.

First, let’s look at the parenting guidelines for a child attached to both parents.  This means that the child is comfortable and secure with both parents

1. Parent A. Tuesday, Thursday 4:00 p.m. to 7:00 p.m. Saturday 10:00 a.m. to Sunday 10:00 a.m. 

Parent B All other times 

2. Parent A. Tuesday 5:00 p.m. to Wednesday 9:00 a.m., Thursday 4:00 p.m. to 7:00 p.m., Saturday 5:00 p.m. to Sunday 5:00 p.m. 

Parent B All other times 

3. Parent A. Wednesday 4:00 p.m. to 7:00 p.m., Saturday noon – Sunday 5:00 p.m.

Parent B All other times

4. Parent A. Wednesday 4:00 p.m. to 7:00 p.m., Saturday 5:00 p.m. to Monday 8:30 a.m.

Parent B All other times

5. Parent A. Tuesday noon – Wednesday noon, Thursday noon – Friday noon, Saturday noon – Sunday noon

Parent B All other times

Now, let’s look at a situation when a child is less attached to one parent (Parent A).  This means that the child is significantly less comfortable and secure with one parent.

Weeks 1 & 2 (Parent A)

Minimum (2 hours) per visit, three times per week on nonconsecutive days

Weeks 3, 4, & 5 (Parent A)

Minimum (3 to 4 hours) per visit, three times per week nonconsecutive days

Weeks 6 & 7 (Parent A)

Minimum (5 to 6 hours) per visit, three times per week nonconsecutive days

Week 8 (Parent A)

See Schedule for Child Attached to Both Parents

Obviously, in each of the above “week” scenarios, the child is with Parent B at all other times.

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7. How do Orange County courts in a divorce case make custody decisions when the child or children are between 3 and 5 years old?

According to the Orange County Parenting Guidelines, current research suggests that children in this age group can form strong attachments to both parents as well as other adults and caregivers. Along with the growing ability to form attachments with many people comes the ability to tolerate longer periods of separation from attachment figures. 

Important for children throughout the preschool years are consistency, predictability, and structure.

The court takes the following into consideration:

• Consistency, predictability, and structure are important during the preschool years.

• Children in this age group are able to follow their schedules using color-coded blocks of time to represent time with each parent marked on a calendar.

• Children in this age group are able to understand one parent may do things differently than the other parent, or rules may differ in different places.

• Preschool children are capable of spending overnights with each parent; however, weeklong blocks of time may seem very long to such young children, and a visit with the other parent midweek may be necessary. 

• Most important for children in this age group is that they are not exposed to parental conflict.  Exposure to parental conflict can cause young children to experience anxiety and to regress to younger behaviors. 

• Nightmares are common for young children and some of their anxieties are often expressed as fears or through nightmares. Nightmares do not necessarily mean the child is having bad experiences with either parent. 

• Young children are very self-centered and often dislike changing activities when they are interested in a particular activity. They may cry, for example, when dropped off at preschool or when they are picked up from preschool. Similar protests can occur during parental exchanges of the child.

• If a child cries when one parent picks up the child, this may mean only that the child does not want to “switch gears”; and such incidents should not be universally interpreted to mean that there is a problem between the parent and child.

The following options are dependent upon the age and maturity of the child, pattern of contact with each parent, family lifestyle, and presence of siblings.

1. Parent A - Alternate weekends Saturday and/or Sunday from 8:00 a.m. to 4:00 p.m. and Wednesday evenings from 6:00 p.m. until 8:00 p.m.

Parent B - All other times

 2. Parent A - Alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and Wednesdays from 5:00 p.m. until 8:00 p.m. 

Parent B - All other times 

3. Parent A - Alternate weekends from Saturday at 8:00 a.m. until Sunday at 8:00 p.m. and Tuesdays and Thursdays from 5:00 p.m. until 8:00 p.m.

Parent B - All other times 

4. Parent A - Alternate weekends from Friday evening until Monday morning and every Wednesday overnight

Parent B - All other times 

5. Parent A - Monday afternoon to Wednesday morning.

Every Other Weekend (Friday afternoon to Monday morning). 

Parent B - Wednesday afternoon to Friday morning

Every Other Weekend (Friday afternoon to Monday morning)

6. Parent A – Saturday evening through Wednesday morning

Parent B - Wednesday afternoon through Saturday evening

7. Alternate Weeks with Parent A and Parent B

Wednesday overnight with the other parent 

8. A combination of any of the above.

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8. How do Orange County courts in a divorce case make custody decisions when the child or children are between 6 and 11 years old?

Orange County parenting guidelines state that most six to eleven year old children can handle moving back and forth between parents’ homes with ease, although some children do better spending more time at one home. The child’s school schedule, extra-curricular activities, parents’ work schedule, and availability to provide transportation and supervision, are important factors in deciding on a parenting plan in this age group.                 

Stability, predictability, ensuring the child’s preparedness for school, and protection from parental conflict are essential to the child’s adjustment.

The following are the essential consideration in this age group:

• Parents need to communicate with each other about establishing consistent rules, structure, and discipline for the child.

• Exchanges should be done quickly and without conflict to reduce transition issues for the child.

• Exchanges may be done by pickup and return at school or daycare.

• Neither parent should schedule outside/extracurricular activities that interfere with the other parent’s court-ordered time with the child without mutual agreement.

• Parents need to agree mutually on any rescheduling in a timely manner.

• Parents should communicate when there are changes in the schedule.

The following are the suggested parenting plan options:

 

1. Parent A. Alternate weekends Saturday and/or Sunday from 8:00 a.m. to 4:00 p.m. and Wednesday evenings from 6:00 p.m. until 8:00 p.m.

Parent B All other times

2. Parent A. Alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and Wednesdays from 5:00 p.m. until 8:00 p.m.

Parent B All other times

3. Parent A. Alternate weekends from Saturday at 8:00 a.m. until Sunday at 8:00 p.m. and Tuesdays and Thursdays from 5:00 p.m. until 8:00 p.m.

Parent B All other times

4. Parent A. Alternate weekends from Friday evening until Monday morning and every Wednesday overnight

Parent B All other times

5. Parent A. Monday afternoon to Wednesday morning. 

Every other weekend (Friday afternoon to Monday morning)

Parent B Wednesday afternoon to Friday morning

Every other weekend (Friday afternoon to Monday morning)

6. Parent A. Saturday evening through Wednesday morning.

Parent B Wednesday afternoon through Saturday evening

7. Parent A. Alternate weeks with Parent B

Parent B Alternate weeks with Parent A

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9. How do Orange County courts in a divorce case make custody decisions when the child or children are between 12 and 18 years old?

Orange County parenting guidelines state that adolescents are developing a separate identity from their parents and typically are more focused on activities and relationships outside the home. At the same time they need ongoing contact with both parents and continued guidance about rules and standards for their behavior. Adolescents often want to be more independent and to have a say in their living arrangements. Parents may find it helpful to allow older teens to express their ideas for schedules and living arrangements, while making it clear that it is still up to the parents to make the final decisions. 

Flexibility is the key in accepting children’s increasing ability to care for their own needs and make more of their own decisions, while making sure that access to both parents occurs on a regular basis.

The essential considerations are:

• It is not unusual for teenagers to be angry or embarrassed by the break-up of their parents and to side with one parent over the other. It is important for both parents to be sensitive to their feelings, yet both parents need to encourage ongoing contact with that parent in spite of these feelings.

• Older adolescents may resist a rigid weekly schedule and may prefer to make adjustments in the schedule based on school activities or other extra-curricular activities.

• Both parents need to support their children’s participation in extra-curricular activities even if it conflicts with their parenting time.

• Effective parental communication and cooperation are required in order to support adolescents in their school and extra-curricular activities.

• While input from their child should be considered, it is the final responsibility of the parents to agree upon the parenting plan.

• Parents should not use the children as messengers, but should communicate directly with one another.

• Flexibility and communication are keys in maintaining positive parent/child relationships.

• Parents should not rely upon their children for emotional support.

• Often teenagers after having lived with one parent wish to spend more time or to live with the other parent. Developmentally this can be appropriate since the adolescent is struggling with forming an identity and often needs to have meaningful contact with the other parent to successfully form their self-concept.

Orange County court’s suggested parenting plan options are:

1. Parent A. Every other weekend (Friday 6:00 p.m. to Sunday 6:00 p.m.)

Parent B All other times

2. Parent A. Every other weekend (Friday 6:00 p.m. to Sunday 6:00 p.m.) plus weekly mid-week visit (Wednesday 5:00 p.m. to 8:00 p.m.)

Parent B All other times

3. Parent A. Every other weekend (Friday 6:00 p.m. to Sunday 6:00 p.m.) plus weekly midweek overnight (Wednesday 5:00 p.m. to Thursday before school)

Parent B All other times

4. Parent A. Every other weekend (Friday afternoon to Monday morning) plus weekly midweek overnight

Parent B All other times

5. Parent A. Monday afternoon to Wednesday morning.  Parents alternate weekends Friday afternoon to Monday morning

Parent B. Wednesday afternoon to Friday morning.  Parents alternate weekends Friday afternoon to Monday morning

6. Parent A. Monday afternoon to Wednesday morning.  Friday afternoon to Saturday/Sunday

Parent B. Wednesday afternoon to Friday morning.  Saturday/Sunday to Monday morning

7. Parent A. Alternate weekly custodial periods with Parent B

Parent B Alternate weekly custodial periods with Parent A

8. Parent A. Alternate fourteen day custodial periods with Parent B

Parent B Alternate fourteen day custodial periods with Parent A

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10. How does the Orange County court in a divorce case typically divide holidays when making custody decisions?

The essential considerations when evaluating in a divorce case a holiday schedule for the children are as follows.  First, it is important for children to experience holidays with both parents and to develop holiday traditions with each parent and extended family as much as is possible.  In addition parents should remember that whatever the relationship between the parents may be, the children probably want to acknowledge holidays and special days with both parents and may need the help of both parents to do so.

It is critical for both parents to have the child’s school schedule available when making holiday parenting plans.  Holiday traditions involving travel to family gatherings should be considered when dividing holiday time. When travel or distance are issues, longer blocks of holiday time in alternating years may allow the children to participate fully in holiday activities with a parent or extended family members who live far away. Parents should be prepared to be flexible when holiday share plans involve travel.

Parents spending a holiday with a child may wish to facilitate some contact, such as a telephone call with the other parent on the holiday or special day.

Participation in holiday activities, such as choosing gifts, etc., may mean that parents, regardless of their conflicts, must work cooperatively in the best interest of the children.

Parents should keep in mind the ages and needs of children when forming holiday parenting plans.  Holidays are extremely important to younger school-age children. Infants and toddlers may be unaware of the holiday and their presence at family gatherings may be more important to the adults. Older adolescents and teenagers may be less excited about holidays and holiday activities than younger children.

Most of all, the safety and enjoyment of the holiday should be the primary concern when planning holiday times with children.

Here is a typical holiday schedule:

New Year’s Day/New Year’s Eve

Options:

A. One parent has the period from December 31 to January 1 in odd years and the other parent has the same period in even years.

B. One parent has extra time scheduled during all or part of the day.

C. There is no change from the usual schedule.

Easter Sunday

Options:

A. One parent has a period of time from Saturday to Sunday in odd years and the other parent has the same period in even years.

B. One parent has extra time scheduled during all or part of the day. 

C. There is no change from the usual schedule.

Mother’s Day/Father’s Day

Options:

A. Each parent has his/her respective day every year, with perhaps an extra overnight or weekend. 

B. One parent has extra time scheduled during all or part of the day. 

C. There is no change from the usual schedule.

Independence Day

Options:

A One parent has the period from July 4 to July 5 in odd years and the other parent has the same period in even years. 

B. One parent has extra time on or near the holiday.

C. There is no change from the usual schedule.

Thanksgiving

Options:

A One parent has all or part of the four-day holiday period in even years, and the other parent has the same period in odd years. 

B. One parent has Thanksgiving Day in even years, and the other parent has the day in odd years.

C. One parent has extra time on the holiday or part of the holiday weekend, or the child participates in activities with each parent.

D. There is no change from the usual schedule.

Christmas

 Options:

A. One parent has the period from midday December 24 until midday on December 25 in even years, and the other parent has this period in odd years. The parent not having December 24-25 has the children from midday on December 25 until midday on December 26.

B. One parent has extra time on the holiday or part of the holiday weekend, or the child participates in activities with each parent.

C. There is no change from the usual schedule.

Monday and Friday Holidays

Options:

A. The parent with the weekend adds the Monday or Friday holiday to the weekend.

B. Each individual Monday or Friday holiday is assigned to one parent in odd years and the other parent in even years.

C. One parent has additional time on all or some of the Monday and Friday holidays.

D. There is no change from the usual schedule.

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11. How does the Orange County court in a divorce case typically divide school breaks when deciding custody issues?

School breaks include off-track breaks, winter break, spring break, and summer break.

According to Orange County parenting guidelines, children of all ages benefit when parents establish a "business-like" (the business of parenting) method of communication. This allows parents to communicate clearly and courteously with each other about the children. When parents give each other as much advance notice as possible regarding vacation plans, this eliminates the potential conflict for the child. It is also helpful for parents to take into consideration the child's regularly scheduled activities or summer school dates prior to finalizing vacation plans.

Vacations, holidays and special days usually take priority over the regular parenting schedule, without making up the lost time. Afterwards, the parents should return to their regular parenting schedule.

Orange County courts have deemed the essential considerations to be:

• Each parent to give the other parent thirty (30) days advance written notice as to vacation dates, destination, and phone numbers of where the child and parent can be reached.

• Telephone contact is recommended to increase the child’s sense of continuity and security during the out-of-town vacation time.

• If the child is in town during a four (4) week vacation period, the non-vacationing parent may want to arrange a weekend or mid-week contact with the child.

• Parents should give consideration to the child’s activities during the summer before making final vacation plans in order to avoid conflict in schedules.

• Older adolescents may resist a rigid vacation schedule and may wish to express their ideas for a summer schedule that includes their activities and interests.

• It is critical for both parents to have the child’s school schedule available before discussing vacation and school break plans.

The following are the parenting guidelines in an Orange County divorce case depending on the age of the child:

Infancy to 3 Years Old

Options:

A. Presuming that one (1) regular weekly overnight has been ongoing, infants to 18-month olds may have three (3) consecutive overnights.

B. Presuming that two (2) non-consecutive overnights have been ongoing, 18 months to

3 year olds may have two (2) seven (7) day periods of vacation time, separated by at least four (4) weeks of the regular schedule.

C. If the child has older siblings, he or she may adjust to longer periods of vacation time which may be arranged on an individual basis by the parents.

D. For child with little attachment to one parent, vacation time should not vary significantly from the regular weekly schedule.

3 to 5 Years Old

Options:

A. Each parent to have up to ten (10) days of vacation

B. Each parent to have two (2) one (1) week periods of non-consecutive vacation time with the child.

C. If the child has older siblings he or she may adjust to longer periods of vacation time.

6 to 11 Years Old

Options:

A. For children from 6 to 8 years old, each parent may have two (2) two (2) week periods of vacation (non-consecutive)

 B. For children age 6 and older, parents may alternate weeks during the school break periods

 C. For children 8 years and older, each parent may have up to four (4) consecutive weeks of vacation time.

 D. For children 8 years and older, parents may alternate the months of July and August each year.

 E. For children 8 years and older attending non-traditional school, parents may share all off-track periods equally throughout the year.

12 to 18 Years Old

Options:

A. Each parent to have two (2) two (2) week periods of vacation.

B. Parents may alternate weeks of all vacation periods.

C. Each parent to have up to four (4) consecutive weeks of vacation each year.

D. Parents may alternate the months of July and August each summer.

E. For children attending non-traditional school, parents may share all off-track periods equally throughout the year.

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12. What do I do if my spouse intends to take the children out of state?

Fortunately, after a divorce petition is filed and served certain automatic temporary restraining orders go into effect.  These orders prevent a parent from removing a child from the state without written consent of the other parent or a court order.

Parents going through an Orange County divorce case are well advised to not just rely on the automatic orders and if a parent is certain that a child is about to be moved out of state, emergency orders should be sought and the authorities contacted.

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13. How can I move with the children to another county or state?

That depends on whether or not you have primary custody of the child and whether it is in the child’s best interest to move. 

A parent that has primary custody of a child has the right to change the residence of the child but subject to the court’s power to prevent it.

“Move-away” custody cases are some of the most difficult and emotional family law cases.  Courts may use different standards in determining whether or not you can move with the child depending on whether you are making your request as part of an initial custody determination (there are no prior orders regarding custody in effect), as a modification of a temporary custody order or a modification of a final custody order. 

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14. Do judges in Orange County divorce cases permit a child to testify about his or her preferences about custody?

Some judges in Orange County are very strict about testimony of a child.  Others are a bit more liberal.  California law states that if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, then the court must consider and give appropriate weight to the child’s wishes. 

That doesn’t necessarily mean that your child will testify in open court.  Many judges appoint a lawyer for the child (called “minor’s counsel”), while others will order a custody evaluation (either by the internal family law court personnel or an independent and private custody evaluator).  If a judge wishes to hear from a child directly, most Orange County judges in a divorce case will take the testimony of the child in the judge’s chambers and not in open court.  Orange County judges are given significant discretion in how much and what type of questioning they will allow of a minor.

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15. My spouse is keeping the children away from me and refuses to let me see the. What can I do to see my children?

You must seek a court order.  If you have a current order and your spouse is refusing to abide by it, you can seek contempt proceedings (which could expose your spouse to fines or even jail), and/or you can seek a modification of custody to give you more time share due to your spouse’s interference with your custody.  Orange County judges take parental alienation seriously and if you have a case where your spouse is refusing to let you see the children without justification, you need to act immediately.

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