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Can I file For Custody without Filing for Divorce?

Can I file For Custody without Filing for Divorce?

There are many different types of petitions that the California Family Law Courts will handle. Divorce is probably the most common and the most well-known, but aside from divorce filings, the courts handle all types of other family law related cases. Within a divorce case with minor children, the issue of custody, visitation, child support, spousal support and the division of assets and debts is handled. In situations where married parties are not wanting to file for divorce, the court will open cases to make orders for custody, visitation and child support. The cases opened in these situations are referred to as a “Petition for Custody and Support of Minor Children”. The court, on their website indicates that this petition is available for parties if… “They are married to each other or are registered domestic partners and do not want to get a divorce, legal separation, or annulment but want a court order for custody and visitation (with or without child support);”, original source here.

The process for filing for this custody and support petition is similar procedurally to other family law petitions in the court. It requires a petition and summons to be filed with the court and because there are minor children there are also required attachments that provide information about the minor children and the requested orders to be made. As indicated by the court, if support is requested additional income and expense documents will also need to be completed and filed in the case. Once these documents are completed and filed, the court will open a case and issue a case number. From there, as with most cases, the documents are to be served (given) on the other party (parent) to inform them there is a legal action taking place and that requests are being made. Process servers can complete the process serve and file the required proof of service at the court, but also an adult over 18 years of age and not a party to the case can handle this requirement. Those with limited financial resources may opt for a friend or family member to handle the process service.

Procedurally, once the other party has been served, the court allows 30 days for the other party (Respondent) to file a response. If they do not file a response, the petitioner is able to move forward without the other party’s participation to obtain a default judgment. In this situation the default judgment will make orders based on what was requested in the Petition while following state guidelines.

If the Respondent does file a response within 30 days of being served, the parties will either have to come to an agreement or one party will need to set up a hearing for the court to make orders. The court will typically set up a mediation appointment first which will take place at the court.

For those parties who are working together to settle and get a judgment by agreement, a judgment can be obtained without going to mediation or a hearing. After the 30 day window the court will allow them to submit their judgment, with a formal agreement on the terms, for the courts approval. If granted, the Judge will sign and that will become the order of the court.

So to answer the initial question, the court will make orders for custody and visitation and child support for those who are married but do not want to file for divorce. An important note is that if the parties later decided they wish to file for divorce or legal separation, it will be a new case filed, new filing fees, new documents, a new and separate court case and case number. The custody case will be addressed since it involved the same parties and orders were filed.  

If you are thinking of filing a petition for custody without entering into a divorce you may want to consider using a bonded and registered legal document assistant. They are authorized by the State of California, by way of bonds and formal registrations at the County Clerk’s office to complete legal documents directly to the public. Just Document Preparation has been assisting with family law related filings in Riverside and San Bernardino since 1996. You can learn more about our services here.


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