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Legal Information: California

Custody

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Updated: 
April 4, 2019

Who can get custody?

First and foremost, at least one of the parents of the child is entitled to custody.1  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.2

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).3  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.”4

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.

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

If 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.1

1 Ann.Cal.Fam.Code § 3061

If 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.1

1 Ann.Cal.Fam.Code § 3040(b)

If 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.1

1 Ann.Cal.Fam.Code § 3046(a) & (b)

Can a parent who committed violence get custody?

If the other parent has committed violence against any of the following people within the last five years, the judge will assume that giving him/her joint or sole custody is not in the best interest of the child:

  • you;
  • the child;
  • the child’s sibling;
  • a parent, current spouse, or cohabitant of the parent/party seeking custody;
  • a person with whom the parent/party seeking custody has a dating or engagement relationship.1

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 and grant that parent/party custody. The judge cannot consider, however, the general preference in the law for frequent and continuing contact with both parents. 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.2

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.

1 Cal. Fam. Code §§ 3044(a); 3011(b)(1)(C)
2 Cal. Fam. Code § 3044(b)

Can 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.1 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.2

1 Ann.Cal.Fam.Code § 6323
2 Ann.Cal.Fam.Code § 6340(a)

Am I eligible for an ex parte temporary custody order?

Judges generally 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.1

1 Ann.Cal.Fam.Code § 3064

Can 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?1  If you are granted the ex parte order, a hearing will generally be scheduled during the next 20 days.2

1 Ann.Cal.Fam.Code § 3060
2 Ann.Cal.Fam.Code § 3062(a)

If 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.1

1 Ann.Cal.Fam.Code § 3063