No Court Order
if You Are Being Denied Custody Or Visitation Rights:
It will be your responsibility to do the following:
You will need to file three copies of the appropriate papers (see below) with the Superior Court Clerk's Office. The forms can be picked up at the Clerk's Office for a fee. When the forms are completed, return them to the Clerk's Office for a Judge's signature. There is a fee for filing the papers. If you have little or no income, you will also need to obtain Fee Waiver Forms from the Clerk's Office. If you meet the qualifications, the filing fees may be partially or completely waived.
If You Need Assistance:
Seek the advice of an attorney or you can contact the Family Law facilitator or the Self Help Center. Both offices are located at 800 11th Street, Room 220 in Modesto.
What Happens Next:
The Court will give you a court date to appear. You must have the other party served. You must appear.
When you appear in Court you will be sent to a mediator. The mediator is a person who sits down with both parties and tries to reach an agreement concerning custody and visitation.
If domestic violence was involved, you are entitled to and may request separate mediation and a domestic violence support person.
When an agreement is reached, both parties will sign the agreement. The Judge will sign it and make it an official Order of the Court and both parties receive a copy of the order.
If an agreement cannot be reached, the parties will appear before the Judge, on a different day. The Judge will listen to both sides and make a decision which will become the official order.
Intrastate or International:
There are laws and international treaties that can assist when children are wrongfully taken out of the state or country. This is not necessarily a federal crime. You should still make a local police report and have the report referred to the CAU.
visitation Problems When There Are No Court Orders
When there are no court orders in effect, both parents have equal rights to their child(ren). It is unlawful however for one parent to conceal the child(ren) from the other parent, or for a parent not to provide some form of contact/visitation to the other parent. The exception is if domestic violence is involved and a parent is in fear for their safety or the safety of the child(ren). In this case, a parent may flee with the child(ren) as long as they notify the District Attorney's Child Abduction Unit within ten days, and file the appropriate paperwork in the Superior Court Clerk's Office in a reasonable time period.
When there are no Court orders, it is lawful for a parent to allow contact/visitation only on a supervised basis and to not allow the visiting parent to remove the child(ren) from the home where the child(ren) is/are presently residing. If a parent obtains physical custody of a child and there is no concealment, that parent may retain the child until there is a Court order.
It is always best to file for custody orders whenever there is a separation or if the parents were never married and are not living together. This provides a clear order which can be enforced should problems arise in the future. Paternity and custody orders can be filed prior to a child's birth.
What to Do
- If there are no Court orders, and your child is being concealed or completely withheld from you, you will need to take the following steps:
- Make a police crime report (Penal Code section 278.5) and have it forwarded to the Stanislaus County District Attorney's Child Abduction Unit.
- Initiate proceedings to obtain a Court order. (See Section below: How to Obtain a Custody Order.)
- If you are being allowed access to the child(ren), but are unhappy with the situation:
- Initiate proceedings to obtain a Court order. (See section below: How to Obtain a Custody Order.)
- Keep good records concerning all visitation episodes.
What to Expect
If your child is being concealed or completely withheld from you, the Stanislaus County District Attorney's Child Abduction Unit will investigate the matter. Depending upon the circumstances, we may be able to assist in locating the child or helping you obtain visitation. However, it will still be necessary for you to file the appropriate papers in the Superior Court to obtain some type of custody decree.
It should be noted that the Child Abduction Unit is not a process server. However, in some instances, where an individual has made every attempt to locate and serve the other party, we may be able to facilitate service.
If you are receiving some visitation with the child(ren), it is up to you to obtain a Court order if you are unhappy with the situation.
How To Obtain A Custody Order
You will need to file three copies of the appropriate papers with the Superior Court Clerk's Office located at 1100 I Street, 1st Floor. The forms can be picked up at the Clerk's Office for a fee. When the forms are filled out, you will need to return them to the Clerk's Office for a Judge's review and signature. There is an additional fee for filing the papers. If you have little or no income, you may obtain a Fee Waiver Form from the Clerk's Office. If you meet the qualifications, the filing fees may be partially or completely waived.
- If you are a victim of domestic violence, you can make a police report and request the police department to issue an Emergency Protective Order. This will give you some protection while you are obtaining a Court order. You can also contact the Haven, at 524-4331. They will be able to assist you in obtaining a Court order and providing a place to stay if you are afraid to return home. They can also provide a court escort.
- You can seek the advice of a private attorney or paralegal, or contact the Stanislaus County Bar Association for a referral for help in obtaining a Court order.
- You can fill out Court papers yourself (they have to be typed) and contact the Stanislaus County Family Law Facilitator to review documents prior to submitting them to the Clerk. Note: The Family Law Facilitator does not give legal advice. They only review documents for completeness. The Family Law Facilitator does have numerous procedural handouts that you can obtain for no charge. They are located at 1100 I Street, 2nd Floor, Modesto. Their hours are 8:00 a.m. to noon and 1:00 p.m. to 5:00 p.m.