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Know the Laws: California

UPDATED January 2, 2017

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WomensLaw.org strongly recommends that you get in touch with a lawyer in your community for more information on custody. Go to the CA Where to Find Help page for a listing of organizations that can help.  For more information about custody and visitation, you can also visit the California Courts Self Help Center.

After an order is in place

back to topIf a custody order is already in place, how can I get it changed?

Because custody is decided based on what is in the best interest of the child, an order is never permanent.  If you have a final custody order already in place, you can petition the judge to make changes to it (modify it) only if there has been a substantial (significant) change in circumstances since the custody order was issued.  The judge may modify the custody order if, based on these new circumstances, s/he feels that the modification would be in the child’s best interests.*

However, if you are looking to modify or terminate a joint custody order, the judge may do so if you can show it is in the best interests of the child without showing a substantial change in circumstances.**  Also, if both parents request it, a custody order giving one parent sole custody can be changed to a joint custody agreement if it’s in the child’s best interests.***

* See, for example, In re Marriage of Lucio, 161 Cal.App.4th 1068 (2008); In re Marriage of Burgess,13 Cal.4th 25, 913 P.2d 473 (1996)
** See Ann.Cal.Fam.Code § 3087; see, for example, Niko v. Foreman, 144 Cal.App.4th 344 (2006)
*** See Ann.Cal.Fam.Code § 3088

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back to topCan I change the state where the case is being heard?

If you move to another state, you may be able to change the state where the custody case is being heard. You will have to file a motion in court to ask the judge who is hearing the case to change the state where your case is being heard (which may be called a motion for a change of venue).  The judge may do so if the child and both parents no longer live in CA or if the child and one parent no longer live in CA and substantial evidence is no longer available in CA concerning the child's care, protection, training, and personal relationships.*

This is often complicated and, as with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer in your area please visit the CA Finding a Lawyer page.
* See Ann.Cal.Fam.Code § 3422(a) & (b)

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back to topIf there is a final custody order in place, can I take my kids out of the state?

Generally, a parent can take his/her kids out of the state for a brief trip as long as there is no order prohibiting it and so long as it does not interfere with the other parent’s visitation rights.  However, if you are uncertain whether a planned trip may violate your custody order, please consult with a lawyer before leaving. 

Generally, you cannot change the child’s residence to another state without the written permission of the other parent or a court order.  The court can direct that the parent who the child lives with has to notify the other parent if s/he plans to change the residence of the child for more than 30 days.  The notice should be sent to the other parent by mail, return receipt requested, within a minimum of 45 days before the proposed move to allow the other parent enough time to object and to bring the case back to court.  A copy of the notice also has to be sent to that parent's attorney in the custody case, if s/he had one.*  To find out more about the procedures to notify the other parent, please contact the court where the custody order was issued.

Note: If either parent files for custody or files to modify custody, there will be an automatic restraining order in place prohibiting the parent who has custody from taking the children out of California until a judge comes up with a final judgment.**  Until the judge makes that final custody order, you would have to ask the judge for permission to take trips with the children out of state.

* Ann.Cal.Fam.Code § 3024
** Ann.Cal.Fam.Code § 3063

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back to topCan I get financial support for my children?

Whenever the question of the financial support of a child comes up, the judge can order either or both parents to pay to support the child.*  If your custody case is scheduled to go to trial, the issue of child support will likely be heard together with the custody matters.**  Parents are required to support their unmarried child until s/he reaches age 18.  However, if at age 18, the child is still a full-time high school student and is not "self-supporting," then the parents have to support the child until s/he finishes 12th grade or turns 19 years old, whichever occurs first.***

California has child support guidelines, which are based on your income, the other parent’s income, and the amount of time the children spend with each of you.  These guidelines will determine how much support you get, except in very rare circumstances.****

AllLaw.com has an online child support calculator that can give you an estimate of the child support guidelines in your case. (Note: WomensLaw.org is not affiliated with this website.)

* See Ann.Cal.Fam.Code § 4001
** See Ann.Cal.Fam.Code § 4003
*** Ann.Cal.Fam.Code § 3901(a)
**** See Ann.Cal.Fam.Code § 4055

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back to topWhat happens if there is a custody, visitation, or support order made within a protective order, and the protective order expires?

Any order for custody, visitation, or support that is made within your ex parte (temporary) protective order or a final protective order will continue to be effective even when the protective order ends.* You may want to ask the judge to specifically write this fact into the protective order to make future enforcement of it easier since this new law may not yet be printed on the protective order forms.

* Ann.Cal.Fam.Code § 6340(a)

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WomensLaw.org would like to thank Dennis K. Rothhaar for his help in putting together a prior version of this material.

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