Legal Information: California

Custody

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Updated: 
January 2, 2017

Who 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)