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[Note: The laws and procedures referred to may change.]
Superior court is where you take family matters like divorce, child
custody and child support, and domestic violence. (If the district
attorney charges someone with a crime, however, it is filed in either
superior or municipal court, depending on whether it is a felony or a
Some counties also offer premarital counseling and free or low-cost
conciliation services for couples who want to save their marriage or to
work together during the divorce. All counties provide conciliation
services to protect the rights of children, as well as mediation for
child custody and visitation problems.
The court can make both temporary and permanent orders about child
custody and visitation, child and spousal support, attorney fees and
court costs, and restraining orders.
FILING FOR DIVORCE
In California, you can end a marriage for two reasons: irreconcilable
differences or incurable insanity. You do not have to give the court any
other reason for ending your marriage.
To file for divorce (called dissolution), at least one spouse must have
lived in the state for six months and in the county for three months. A
form called a petition must be filed with the clerk of the superior
court in the county where the person who files lives. People with low
incomes may not have to pay the filing fees.
Summons: The summons is a paper stating that one spouse is filing for
divorce. The person filing for divorce must have someone who is 18 years
or older personally deliver copies of all papers of the summons and the
petition to his or her spouse. If the spouse cannot be located, the
judge may approve an alternative way to notify the person.
Hearing: After the papers are filed with the clerk's office, one of the
spouses may ask for a hearing at which a judge will decide temporary
custody and support issues. If the spouses are not able to reach an
agreement on permanent custody and support plans, both people must go to
court so that a judge can decide these issues.
Default: If a spouse does not contest the divorce, or does not file an
answer to the papers asking for divorce, a court hearing may not take
place. The person filing for divorce must then file an affidavit, which
is a sworn statement that the marriage is ending because of
Final: A divorce cannot be granted until at least six months after the
other spouse is notified of the filing of the petition. Neither party
can remarry legally until after that date.
Summary Dissolution: Childless couples with very little property who
have been married less than five years and can agree on how to divide
their property and debts may obtain a summary dissolution. That means
that they have to fill out official forms jointly and file them in the
court, but they do not need a court hearing.
Couples may separate by mutual agreement or by court order. Couples
wanting a legal separation must ask the judge for a legal separation
order. Property settlement, spousal support, and child custody
arrangements also must be made at the same time. An individual's
earnings after separation, whether by court order or mutual agreement,
are considered separate property, not community property. There is no
Children's Needs Come First
The law requires judges to award custody according to the best interests
of the child. In most cases, judges give custody to one or both parents
and occasionally to a friend or relative, depending on circumstances.
Joint custody is usually granted if the parents ask for it. Otherwise,
judges grant custody to the parent who can best care for the children's
Parents who separate should agree on a child custody arrangement. In
California, either parent can have custody or the couple can share
custody. The judge makes the final decision but usually will approve the
arrangement both parents agree upon.
If parents cannot agree on a long-term custody arrangement, a temporary
custody arrangement must be found until a long-term one is ordered.
Either parent may ask the judge for temporary custody. The judge usually
will not make a decision until after the parents have talked with a
Mediation: If spouses continue to disagree on custody, a judge will
appoint a court mediator to help the parents resolve their disputes. In
some counties, couples have to pay for part or all of the mediation
service. Spouses may also retain a private mediator.
Court Hearing: If mediation does not work, the judge will listen to both
sides of the dispute in a court hearing and then make a decision. In
some courts, the mediator may make a recommendation to the judge. Ask
the mediator what the policy is in your court. The judge may also
appoint an evaluator to help assess a parenting arrangement that is in
the best interest of the child. A parent may request such an evaluation,
but the request may not be granted. Parents may be charged for some or
all of the evaluation costs if they can afford them.
The court may also appoint separate counsel for children who are the
subject of a custody dispute.
Temporary Restraining Order: Parents who fear their spouses are
dangerous or might take children out of the state to live can ask the
judge to issue a Temporary Restraining Order. This order may mean that
neither parent can take the children out of the state without the
written consent of the other parent or a court order.
Court-Appointed Guardians: The court may appoint a guardian for a minor
whose parent is unavailable, unwilling, or unable to make competent
decisions about the minor child's welfare. The guardian's role is to
serve in a "parent" capacity in order to protect the best interests of
the minor in court actions.
The right to support does not belong to the parent who has custody of a
child; the right to support belongs to the child. Each parent has an
equal responsibility to support a minor child, depending on income.
Parents who are divorcing may agree on the child support plan, but a
judge must approve the amount of child support payments.
When parents cannot agree on a plan, the judge decides whether a spouse
is entitled to payments and what the payment amount will be. Later
either spouse may ask the judge to change the amount. A lawyer or the
clerk of the superior court may provide more information about how child
support decisions are made by the court.
A spouse who wants to ask the court to change the spousal or child
support amount can get a form from the court clerk's office. To enforce
support, however, contact the county district attorney's office, which
will provide enforcement services at low or no cost.
Child support payments are usually made until children reach the age of
18, or age 19 if they are still in high school.
If the parent does not make the child support payment, the person
entitled to the payment may do any of the following:
* Ask the judge to find the nonpaying parent in "contempt of court,"
which means the spouse disobeyed a court order. The penalty for contempt
may be a fine, jail, or both.
* Ask the county district attorney to have back payments deducted from
the spouse's state income tax refund. The district attorney also could
charge the spouse with a misdemeanor, which is a criminal offense
punishable by a fine or a maximum one-year jail sentence or both.
* File forms to garnish wages or put a lien on bank accounts and/or
California superior courts can issue orders to protect people from the
violence or threats of violence of family members or people they date or
In such a case, a Temporary Restraining Order may order a violent person
to stay away or to move out and not return to the home. It also can
contain other orders required to ensure a victim's safety. In addition,
a restraining order can decide who has temporary custody and visitation
of children, who has temporary possession of certain property, and who
pays certain bills.
A person who feels physically threatened by a spouse or someone living
in the home, or who is constantly annoyed by someone, must fill out a
series of domestic violence prevention forms that are available from the
court clerk's office. Generally, the person may appear before a judge
the same day to request a Temporary Restraining Order that is good for
up to 20 days.
Telephone Restraining Order: A law enforcement officer called to a
domestic violence incident can contact the court at any time to request
that a Temporary Restraining Order be issued over the telephone. The
order is valid for several days to give the victim time to go to court
to request an order that can last as long as three years.
The victim may call police if the restraining order is not obeyed,
leading to a criminal charge.
Order After Hearing: An Order to Show Cause hearing is held within 20
days to determine whether a restraining order can be issued that is good
for three years. Afterwards, an Order After Hearing can be prepared or
filed, which can order the same things a Temporary Restraining Order
can. It also can provide for child support, restitution, and counseling.
Judges usually will allow the accused spouse to explain his or her side
before issuing the order.
Domestic Violence Counseling: Some family court services will offer
counseling for families in which domestic violence is present. Ask the
judge if your court provides this counseling.
Instructions for Orders Prohibiting Domestic Violence contains more
information about how to get court orders and how to fill out the
necessary forms. You can pick it up at your court clerk's office. There
may be a charge.
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