Know the Laws: California
UPDATED August 2, 2016
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.
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
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
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
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:
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.
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)
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)
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
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:
* Ann.Cal.Fam.Code § 3046(a) & (b)
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:
Note: If you are / were a victim of domestic violence and you believe that your California 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
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)
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
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)
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
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
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:
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:
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.
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:
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
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
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)
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
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)
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
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
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)
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)
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)
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:
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:
WomensLaw.org would like to thank Dennis K. Rothhaar for his help in putting together a prior version of this material.