A request for a temporary custody order is usually made by filing an Order To Show Cause (“OSC”). This consists of a Judicial Council OSC Form (Form FL 300), an Application For Order (Form FL310) and supporting sworn written declarations of the parents and other witnesses. Because of the heavy caseload of family law matters in most Courts in California, judges have come to rely on sworn written declarations instead of taking oral testimony of witnesses in Court. You should, however, check the local rules of your Court to see how they handle OSC applications. In many counties, the “preferred practice” is for judges to make decisions based upon written declarations, supplemented by offers of proof of counsel at the hearing, and only occasionally by oral testimony. The entire hearing may take less than twenty minutes. That is why your written declarations are so important to winning your case. Judicial Council Forms can be found at http://www.courtinfo.ca.gov/forms/.
FORMAT OF YOUR CUSTODY DECLARATION
You declaration should be in the correct format on numbered pleading paper, with separate paragraphs and must end with a perjury declaration e.g.
DECLARATION OF JOHN DOE
1 I am Petitioner/Respondent in this matter. The facts stated herein are within my personal
2 knowledge and I further affirmatively state that, if sworn as a witness, I could and would
3 competently testify thereto.
4 2. [insert facts]
6 I declare
under penalty of perjury under the laws of the State of California that
foregoing is true and correct to the best of my knowledge.
8 Executed this____ day of ____, 2006, at Los Angeles, California.
10 [Sign your name]
A copy of a blank declaration for in WORD is attached here.Download declaration_client.doc
Your first paragraph should consist of a short summary outlining what relief you are requesting. For example: “I respectfully request that the Court award me joint legal custody and primary physical custody of John Doe (date of birth ____ age___) “the minor child,” with Respondent having visitation on alternate weekends from ____to ____with Respondent picking him up at [place] at [time] and returning him to [place] at [time].
Lead with your strong points and remember that the Judge
who will be reading this may know nothing about your case. You can view a declaration filed with the Los
Superior Court in the case of Denise Richards v. Charlie Sheen here.Download richards_declaration_april21_2.pdf
When you discuss what you want for your children, you should focus primarily on your parenting skills and your positive contributions to raising them. It’s a mistake to focus only on bad or negative things about your spouse. If the Court has to make a decision about the best interests of the children, it wants to hear about both side’s parenting abilities and what plans they’ve made. Once you’ve discussed your role in raising the children, then you can explain why you think you are the better parent and describe any traits or incidents that show your spouse’s poor parenting choices/judgment. The chances are that your spouse will also level accusations against you, so you should be prepared to discuss this.
One objective of your declaration is to show the Court that your proposed parenting plan is, as a practical matter, better suited to both parents schedule and your children’s schedule. Before you even start writing your declaration it is a good idea to start by charting out the schedules of your children, your schedule and your spouses. Take a calendar and chart out in a colored pen the activities of each of your children (e.g. when they leave and return from school/day care each day, when they go to different activities such as music lessons, when they have vacations etc.) Next, take a different colored pen and chart your activities and commitments. Include when you go to and return from work, go to meetings, go out with friends etc. With another colored pen do the same for your spouse. You should then compare your desired parenting plan and your spouse’s desired parenting plan to see if there is any common ground and why your plan is more appropriate.
WHAT TO PUT IN MY DECLARATION
The following is a list of issues you should consider when preparing your declaration. This list is by no means exhaustive but will provide a basis for helping you discuss why your proposed plan is in the best interests of the children. Some questions might be less appropriate depending on how many children you have and how old they are. It’s important to try and be as specific as possible. If you are describing an event, it’s a good rule of thumb to try and answer in terms of “what,” “when” and “where”. If there’s a specific incident, try to remember a specific date or a month when it happened e.g. “last month”, “about six months ago”. If you are describing a particular behavior describe how long it has been going on and it’s frequency. For example, “he/she has been drinking since 2002,” “he/she drinks frequently several times a week,” “he/she usually drank at home in the evenings ” etc.
WRONG: Respondent has a drinking problem.
BETTER: When Respondent and I lived together, he drank 6 to 7 beers a day and up to 12 a day on Saturday. When he picks up the kids on Friday, I can smell alcohol on his breath, his speech is slurred and he has difficulty maintaining his balance. Three weeks ago, Respondent showed up at my house with alcohol on his breath and swore “*****” at me in front of the children….etc.
- What is your proposed parenting plan? Describe what days you wish to have your children. Who will pick them up and return them and to what location e.g. school or one parent’s house? Describe how you propose to make such a plan work. Will you need additional child care? Can your job and work schedule realistically accommodate such a plan?
- Prior History. Describe the procedural history of your case if you have already been to Family Court on these issues. Discuss dates of court appearances, Court orders, agreements.
- Describe your children’s relationship with you and your spouse?
- Describe your contributions to raising your children. Were you the primary caregiver who stayed at home while your spouse worked during the marriage?
- Describe you and your spouse’s responsibility for taking the children to doctor’s appointments, babysitters, school, church etc.
- Describe who does homework with the children.
- Describe how you and your spouse take care of the children’s personal needs such as bathing, changing diapers, arranging for sitters, haircuts, feeding?
- Describe how you and your spouse discipline the children and set structure for them?
- Describe what kind of personal attention each of you gives to the children, such as teaching problem solving, reading, playing together, sharing activities?
- Describe you and your spouse’s involvement in the children’s social, educational and religious activities. For example, who attended most teacher-parent conferences, took the kids to the gym etc.
- Who do the children turn to when they have problems or need someone to talk to? Describe any incidents you think are significant.
- What do the children do on the weekends?
- Do the children spend time with relatives and who takes them?
- Describe why you think you are the better parent?
- Describe what you’ve done to encourage your spouse to remain involved in the children’s lives.
- Do the children have any special educational, medical, dietary needs?
- Describe any incidents in which your spouse has shown poor parenting judgment or made bad choices? Describe any incidents when your spouse has not been as emotionally or financially supportive of the children as they should have been.
- Describe any other problems you have with the way your spouse parents?
- Describe any habits or any behaviors of your spouse which negatively affect the children?
- Describe any preferences your children have expressed about who they want to live with?
- Describe any major disagreements you’ve had with your spouse about how you raise the children? For example, over issues such as religion, lifestyle, schools, friends etc.
- What kind of custody/visitation do you think is appropriate for your spouse?
- Describe any childcare arrangements you’ve made.
- How will these plans affect their education? Will they stay in the same school? Who will pick up/drop off?
- Describe any incidents of domestic violence.