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Know the Laws: California

UPDATED September 17, 2013

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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.

Definitions and basic info

back to topWhat is custody?

When the court issues a custody order, it will address these two parts of custody:

Physical custody is the physical care and supervision of a child (under 18 years of age).  In other words, it addresses who the child will live with on a day-to-day basis.

Legal custody
is the right to make major decisions about your child, like where your child goes to school, what kind of health care s/he receives, or what kind of religious training s/he attends.*

* See Ann.Cal.Fam.Code §§ 3002-3007

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back to topWhat is joint custody?

Joint custody means you share custody with the other parent.  In California, there is not a preference for joint custody as there is in some other states.*

Joint legal custody is when both parents have equal rights and responsibilities for major decisions concerning the child.**  These decisions include the education, religious training, counseling, health care, extracurricular activities, as well as where the child will live.  The court may assign one parent to have sole power to make certain decisions and may give both parents equal rights and responsibilities for other decisions.

Joint physical custody is when custody is shared in a way that gives both parents frequent and substantial contact with the child.***  It does not necessarily mean that the child spends half of the time with each parent.  Instead, the child spends blocks of time with each of the parents, who share the right and responsibility to raise the child in their homes.  Each parent has more than simple visitation privileges.

* Ann.Cal.Fam.Code § 3040(c)
** Ann.Cal.Fam.Code § 3003
*** Ann.Cal.Fam.Code § 3004

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back to topWhat is sole custody?

Sole custody means that you don’t share custody with anyone else.  When each parent wants sole custody, one of the factors the judge will consider is which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent *

Sole legal custody is when only one of the parents has the right and responsibility to make major decisions concerning the child (relating to the health, education, and welfare of a child).**  You do not have to discuss your decisions with the other parent.

Sole physical custody is when only one parent is responsible for the physical care and supervision of the child.***  The non-custodial parent (parent without custody) usually will have visitation privileges.

* Ann.Cal.Fam.Code § 3040(a)(1)
** Ann.Cal.Fam.Code § 3006
*** Ann.Cal.Fam.Code § 3007

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back to topWhat are some pros and cons of starting a custody case?

There are many reasons people choose not to file for custody.  Some people decide not to get a custody order because they don’t want to get the courts involved.  Some parents make an informal agreement that works well for them.  Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for (and get) more custody or visitation rights than they are comfortable with.

However, getting a custody order from a court can give you certain legal rights.  Getting a custody order can give you:

  • The right to make decisions about your child and/or
  • The right to residency (to have your child live with you).
Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day.  However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.

We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation.  You can find legal help by clicking on the CA Finding a Lawyer page.

Some people think they should file for custody so they can get child support.  While custody and child support are related, you do not necessarily need a custody order to get child support.  A custody order will not automatically give you child support.  For information on filing for child support, you can contact your local courthouse by going to our CA Courthouse Locations page or talk to a lawyer.

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back to topShould I start a court case to ask for supervised visitation?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to CA Finding a Lawyer to seek out legal advice.

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Who can get custody

back to topWho can get custody?

First and foremost, at least one of the parents of the child is entitled to custody.*  Parents are assumed to both be equally entitled to custody unless one of the parents is dead, doesn’t want custody, is unable to get custody, or has abandoned the child -- then the other parent is entitled to custody.**

In some situations, the judge will grant custody to someone other than the parent (for example, if the child has been living in the home of someone other than his/her parents, that person may be able to get custody).***  However, the judge will not do this often - only when there is clear evidence that letting either parent have custody would be harmful to the child.  It does not have to be specifically proven that the parents are “unfit.”****

If the court finds that the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case, the court shall, upon its own motion or upon a motion by the minor parent or the minor parent's counsel, appoint a guardian ad litem.

Note: For the exact order of preference (who the judge gives the most preference to and who gets the least preference when deciding custody) please see section 3040 on our CA Statutes page.

* Ann.Cal.Fam.Code § 3010(a)
** Ann.Cal.Fam.Code § 3010(b)
*** Ann.Cal.Fam.Code § 3040(a)(2) & (3)
**** Ann.Cal.Fam.Code  § 3041(a)-(d)

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back to topIf I am an undocumented immigrant, can I still get custody?

Yes.  According to California law, the immigration status of a parent, legal guardian, or relative does not disqualify that person from receiving custody.*

* Ann.Cal.Fam.Code § 3040(b)

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back to topIf the other parent and I make an agreement about custody or temporary custody of our kids, will the judge accept our agreement?

Generally, yes.  If you and the other parent make an agreement, it will be attached to and filed with the official petition for custody.  After it is filed, the judge will generally enter an order that will grant whatever you and the other parent have agreed upon.*

* Ann.Cal.Fam.Code § 3061

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back to topIf I have moved away from the house where the abuser and my children currently live, will this hurt my chances of gaining custody?

It depends.  If you move out of the family residence, the judge will NOT consider this as a factor when deciding custody or visitation if:

  • You left to escape domestic violence or the threat of domestic violence by the other parent; or
  • The absence is brief and during the absence you have shown an interest in maintaining regular contact with the child and show no intention of abandoning him/her.  If you tried to keep in contact with your child but couldn’t because the other parent interfered, this will also be considered by the judge.*

* Ann.Cal.Fam.Code § 3046(a) & (b)

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back to topCan a parent who committed violence get custody?

Maybe.  If the other parent has committed violence against you, the child, or the child’s siblings in the last 5 years, the judge will assume that giving him/her joint or sole custody is not in the best interest of the child.  However, that does not mean that the judge will never give that parent custody.  The judge, after considering the following factors, can decide to go against the regular assumption that the parent who committed violence should not get custody of the child.  The factors that the judge will consider are whether or not the abuser:

  • has shown that giving him/her sole or joint custody is in the best interest of the child;
  • has successfully finished a batterer’s treatment program;
  • has successfully finished alcohol or drug abuse counseling if the judge ordered him/her to do so;
  • has successfully finished a parenting class if the judge ordered him/her to do so;
  • is on probation or parole and, if so, whether s/he has followed all the terms of the probation or parole;
  • has a protective order against him/her and, if so, whether s/he has followed the directions in the order; and
  • has committed any further acts of domestic violence.*

Note: If you are/were a victim of domestic violence and you believe that your CA custody /visitation order puts your child in a dangerous situation with the other parent, you may want to contact the Family Violence Appellate Project. They work with low-income survivors of abuse in California who want to appeal a court order that was issued within the last 60 days (or who are defending against an appeal filed by the other parent) and who cannot afford to hire an attorney. 

* Ann.Cal.Fam.Code § 3044

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back to topCan I get temporary custody as part of my domestic violence restraining order (DVRO) against the other parent?

It depends.  If you get restraining order due to domestic violence, the order may include temporary custody of minor children.  By law, the judge assumes that it is in the best interest of the child to be in situations where there is no domestic violence.*  The DVRO can also make a temporary visitation schedule for the non-custodial parent.  Be sure to tell the judge that you want temporary custody during your restraining order hearing so that the judge can take your request into consideration.  Note: Any order for custody, visitation, or support that is made within your DVRO will continue to be effective even when the DVRO ends.**

* Ann.Cal.Fam.Code § 6323
** Ann.Cal.Fam.Code § 6340(a)

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back to topAm I eligible for an ex parte temporary custody order?

It depends on your situation.  Judges will only grant ex parte orders when there is immediate harm to the child or an immediate risk that the child will be removed from the state.

Immediate harm to the child includes, but is not limited to, having a parent who has recently or continually committed acts of domestic violence, or if the child has been recently or continually sexually abused.*

* Ann.Cal.Fam.Code § 3064

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back to topCan I ask for an ex parte temporary custody order when I file for custody?

Yes.  You can include a request (petition for) a temporary custody order when you first file for custody, or any time after you first file for custody if you meet the requirements explained above in Am I eligible for an ex parte temporary custody order?*  If you are granted the ex parte order, a hearing will generally be scheduled during the next 20 days.**

* Ann.Cal.Fam.Code § 3060
** Ann.Cal.Fam.Code § 3062(a)

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back to topIf the other parent or I get ex parte temporary custody, can either of us leave the state with our child?

No.  Whenever a judge grants an ex parte order for temporary custody, s/he also enters an order that says that whoever is getting custody cannot take the child out of the state before the hearing that will establish final custody.*

* Ann.Cal.Fam.Code § 3063

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Who can get visitation

back to topCan a parent who committed violence get visitation?

Sometimes.  When making a visitation order in a case in which an emergency protective order, protective order, or other restraining order has been issued, the court must consider whether it is in the best interest of the child to have unsupervised visitation or whether the visitation should be supervised by a third party, suspended or denied altogether.*  Your child may be able to give the judge his/her preference about the other parent’s visitation as long as the child is of “sufficient age and capacity [ability] to form an intelligent preference.”  If the child is over 14 years old and wants to talk to the judge about visitation, the judge must allow the child to do so unless it is not in the child’s best interests. Children under 14 years old might be able to talk to the judge as well.**

If the abusive parent uses drugs or abuses alcohol, the judge could make the parent undergo tests for alcohol and illegal drug use if s/he decides that the parent is a frequent or habitual user.  If the tests show that the abuser does use drugs or alcohol, this could be a factor that the judge considers when deciding whether or not to grant him/her visitation.  When deciding if the parent is habitually using, one type of evidence the judge will consider is any convictions for illegal drug use or possession within the past 5 years.***

Note: If you are/were a victim of domestic violence and you believe that your CA custody /visitation order puts your child in a dangerous situation with the other parent, you may want to contact the Family Violence Appellate Project. They work with low-income survivors of abuse in California who want to appeal a court order that was issued within the last 60 days (or who are defending against an appeal filed by the other parent) and who cannot afford to hire an attorney.

* Ann.Cal.Fam.Code § 3031(c)
** Ann.Cal.Fam.Code § 3042(a),(c),(d)
*** See Ann.Cal.Fam.Code § 3041.5

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back to topCan grandparents get visitation?

Sometimes.  Whether or not the parents of the child are married or unmarried, the grandparent will have to prove that s/he has such a close relationship and bond with the grandchild that visitation would be in the best interest of the child.  However, if both parents agree that the grandparent should not be granted visitation rights, or if the one parent who the child lives with (with that parent having sole legal and physical custody over the child or if there is no court order) does not want the grandparent to have visitation, the judge will assume that the visitation of a grandparent is NOT in the best interest of the child.  It is then up to the grandparent to try to change the judge’s mind and prove that the visitation IS in the child’s best interests.

However, if the parents are married, there are additional restrictions that the grandparent has to follow.  The grandparent can file for visitation only if one or more of the following circumstances exist:

  1. The parents are currently living separately on a permanent basis;
  2. One of the parents has been absent for more than one month without the other spouse knowing where s/he is;
  3. One of the parents joins in the petition with the grandparents (consents to the visits);
  4. The child is not living with either parent; or
  5. The child has been adopted by a step-parent.*
* Ann.Cal.Fam.Code § 3104 (a)(1)-(2), (b)(1)-(5)

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The custody process

back to topHow will a judge make a decision about custody?

The judge will try to come up with a custody arrangement that s/he thinks is in your child’s best interest.*  The judge will look at many factors to decide what is in the best interest of your child.  Some of these factors may include:

  • The health, safety, and welfare of the child;
  • Any history of abuse by the parent seeking custody against you, a child s/he was related to or took care of, his/her parent, his/her current spouse or cohabitant, or someone s/he is dating;
  • The nature and amount of contact that the child has with both parents (unless the contact is limited due to the situations described in If I have moved away from the house where the abuser and my children currently live, will this hurt my chances of gaining custody?);
  • The regular abuse of prescribed drugs or illegal drugs or the regular abuse of alcohol by one or both of the parents;** and
  • The wishes of the child if the child is old enough to make an intelligent decision. If the child is over 14 years old and wants to talk to the judge about custody or visitation, the judge must allow the child to do so unless it is not in the child’s best interests. Children under 14 years old might be able to talk to the judge as well.***
When you are getting ready for the court hearing to determine custody, it is a good idea to gather as much information as possible about the other parent and yourself that will help the judge get a good picture of your family’s situation.  This includes information on the other parent’s behavioral patterns.  This is particularly important if there have been incidents of abuse that you would like taken into consideration.  If possible, come to court prepared with written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities or any other proof you can provide that explains the behavior of the other parent.

California has laws that may help survivors of abuse.  The judge will assume that giving an abuser sole or joint custody goes against your child’s best interest if the judge finds that the abuser committed domestic violence against you, the child, or the child's siblings within the past 5 years.  If an abuser wants sole or joint custody, the burden is on him/her to change the judge’s mind by proving how it is in the child’s best interest for him/her to have custody rights.****

* See Ann.Cal.Fam.Code § 3020
** Ann.Cal. Fam.Code § 3011
*** Ann.Cal.Fam.Code § 3042
**** Ann.Cal.Fam.Code § 3044

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back to topDo I need a lawyer?

You do not need a lawyer to file for custody.  However, it may be difficult for you to file a proper petition without the help of a lawyer.  Also, if the other parent has a lawyer, it will be particularly helpful if you have a lawyer as well.  For legal help, go to CA Finding a Lawyer.

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back to topWhere can I file for child custody? (Which state has jurisdiction?)

Generally, you can file for custody only in the "home state" of the child.  (There are exceptions to the "home state" rule -- see below.)

The "home state" is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months.  If your child is less than six months old, the "home state" is the state where the child has lived from birth.  (Temporary absence from the state does not change anything.)

If you and your child recently moved to a new state, you usually cannot file for custody in that new state until you have lived there for at least six months.  Until then, the other parent can start a custody action in the state where your children most recently lived for at least six months.*

There are exceptions to the "home state rule."  In some cases, you can file for custody in a state where the child and at least one parent have "significant connections," and where there is evidence available about the child’s care, protection, training, and personal relationships.  Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction (decide the case).**  This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this.

You can also file for temporary emergency custody in a state other than the home state if the child is present in that state and one of the following is true:

  1. The child has been abandoned; or
  2. Custody is necessary in an emergency to protect the child because you, the child, or a sibling of the child, is subjected to or threatened with mistreatment or abuse.
Note: If there is no prior custody order and no current custody case from the home state involving the child, but either parent files for custody in the home state over the next 6 months, the temporary custody order from CA would only be effective until a court in your home state makes a custody decision.  If no one files for custody in the home state over the next 6 months, the CA temporary custody order can become a final order.

If there is a prior custody order or a current custody case in the home state, the temporary custody order would only last for a specific time period so that you can go back to the home state court to have that judge issue a custody order.  The judge in CA has to contact the judge in your home state to decide how to best protect the child and to agree on the time period for how long the order will last. ***

Judges may be reluctant to grant temporary emergency custody.  If at all possible, we suggest that you talk to a lawyer before filing. Go to CA Finding a Lawyer for legal help.

* Ann.Cal.Fam.Code § 3421(a)(1)
** Ann.Cal.Fam.Code § 3421(a)(2)
*** Ann.Cal.Fam.Code § 3424(a)-(d)

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back to topWhat are the steps for filing for custody?

It depends on the particulars of your situation.  To find out what the process will be like for you, please consult a lawyer in your area. Go to our CA Finding a Lawyer page for more information.

Generally, if the parents are married, one or both of the parents files for custody as part of a divorce or legal separation action.*  However, a married parent can also file a petition for custody without asking for a divorce.**  If the parents are already divorced, there would have been a custody order in the divorce decree.  Therefore, if either parent wants to change it, s/he can file a petition for a change in custody in the county where the divorce was granted.***  If the parents were never married, either parent can file for custody in the county in which the child is living.****

* See Ann.Cal.Fam.Code § 3022
** Ann.Cal.Fam.Code § 3120
*** See California Courts Self Help Center for forms and instructions needed to change your custody order
**** Ann.Cal.Fam.Code § 3010

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back to topThe judge referred my case for mediation. What is mediation?

Mediation is when a neutral third party helps people communicate in the hope that the two parties can come to an agreement.  When mediation is used in a custody case, the mediator will try to bring you and the other parent to an agreement about custody and visitation that is in the child’s best interest.*  The mediator could be a staff member of family court, the probation department, mental health service agency, or anyone else the judge decides to appoint as the mediator.**  Whether or not the judge will make you go to mediation before moving forward with a hearing will depend on the county you are in as well as the judge you’ve been assigned.***

If you don’t reach an agreement with the other parent, in some counties, the mediator will make a recommendation to the judge about what s/he thinks the custody / visitation order should be. However, the mediator will have to give the parties and their attorneys, including counsel for any minor children, the recommendations in writing in advance of the hearing. The judge will ask at the hearing if the parties and their attorneys have received the recommendations in writing. Also, the mediator could recommend that there be an investigation into the condition of the home and family life, recommend other services (counseling, etc.) that the mediator thinks would help you and the other parent come to an agreement, and also recommend that the judge issue restraining orders if the mediator thinks that the child could be in danger of domestic violence. In other counties, the mediator will not tell the judge anything that happened during mediation and will not make any recommendations.****

There should be no fee for the mediation but you can check with the court personnel to be certain.

* See Ann.Cal.Fam.Code § 3161; see also Ann.Cal.C.C.P. § 1775.1
** Ann.Cal.Fam.Code § 3164(a)
*** Ann.Cal.C.C.P. §1775.2(b)
**** Ann.Cal.Fam.Code § 3183

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back to topDo I have to go to mediation even if I am a domestic violence victim?

If your county court uses mediation, yes.  In those counties, a judge is supposed to refer the parties for mediation whenever the parents don’t agree on custody and visitation matters.*  However, if you have made allegations of domestic abuse in the custody case or if you have a DVRO, you can request that the mediator meet with you and the other parent in separate sessions.**  Therefore, remember to speak up if you do not want to be in the same room with the abuser during mediation.

Note: Some counties will allow you to bring your lawyer with you into mediation; others will not.  However, if you don’t have a lawyer, you should be allowed to bring a support person with you (a friend, family member, pastor, etc.) to mediation or to sit with you in court at the custody hearing (where a lawyer would normally sit) when you have made allegations of domestic abuse.***

* Ann.Cal.Fam.Code §3170
** Ann.Cal.Fam.Code § 3181
*** Ann.Cal.Fam.Code § 6303(c)

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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?

Probably.  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.**

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.

* See Ann.Cal.Fam.Code § 4001
** See Ann.Cal.Fam.Code § 4003
*** 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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The effect of military deployment on custody/visitation

back to topCan a parent modify an order due to military duty?

A parent’s absence, relocation, or failure to follow a custody or visitation order due to activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state is not enough, by itself, to justify a modification of the order.* However, if the military assignment requires a parent who has sole or joint physical custody to move a significant distance from his/her home or otherwise has a significant effect on his/her ability to use his/her custody or visitation rights, the order can be modified.**

* Ann.Cal.Fam.Code § 3047(a)
** Ann.Cal.Fam.Code § 3047(b)(1)

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back to topIf the order is modified due to a custodial parent’s military duty, what happens when the parent returns?

If a custody order is modified based on the reasons mentioned in the question above, the modification of the order will be considered a temporary custody order that will be reconsidered upon the person’s return. The judge will assume that the temporary, modified custody order will change back to the original order that was in place before the modification (unless the judge determines that it is not in the best interest of the child).* In the temporary custody order, the judge should do whatever is appropriate to make sure that the moving parent can keep regular and continuing contact with the child in reasonable ways.**

* Ann.Cal.Fam.Code § 3047(b)(1)
** Ann.Cal.Fam.Code § 3047(b)(3)(A)

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back to topIf the parent with sole/joint custody has moved far away due to military duty, can his/her relatives get visitation?

Yes – if the relative can meet certain conditions. The relocating parent (not the family member) can file legal papers to ask the judge to give visitation rights to a step-parent, grandparent, or other family member. The judge can grant the visitation if the judge does all of the following:

  • Believes that there is a pre-existing relationship and bond between the family member and the child, so that visitation is in the child’s best interest;
  • Believes that the visitation will help the child's contact with the absent parent; and
  • Balances the interest of the child in having visitation with the family member against the right of the parents to use their parental authority.*
Note: These visitation rights to a family member do not affect the calculation of child support.**

* Ann.Cal.Fam.Code § 3047(b)(3)(B)
** Ann.Cal.Fam.Code § 3047(b)(3)(C) and (D)

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back to topWhat happens if a parent cannot attend a hearing due to military duty?

If a person’s deployment, mobilization, or temporary duty will affect his/her ability to be at a regularly scheduled hearing in person, the judge will do either of the following depending on what the parent asks for:

  • Move up the hearing to determine custody and visitation issues before s/he has to leave; or
  • Allow the parent to present testimony and evidence and participate in court-ordered child custody mediation by telephone, video teleconferencing, or the Internet (for example), if these are reasonably available to the judge and the process is fair to all parties.*
* Ann.Cal.Fam.Code § 3047(c)

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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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