Child custody in California

What the law tells the judge to look at

In the order the law lists them.

1. Your child's health, safety, and welfare.Cal. Fam. Code § 3011(a)(1)
2. Any history of abuse by a parent or other person asking for custody. This means abuse of a child they are related to or have cared for, of the other parent, or of their own parent, spouse, live-in partner, or dating partner. The judge may ask for proof such as police, child protective services, or medical reports.Cal. Fam. Code § 3011(a)(2)
3. How much contact the child has with each parent, and what kind.Cal. Fam. Code § 3011(a)(3)
4. Regular, ongoing illegal drug use, alcohol abuse, or abuse of prescription drugs by either parent. The judge may ask for proof such as police, court, probation, or treatment reports.Cal. Fam. Code § 3011(a)(4)

Other things the judge considers

• If the judge gives custody to one parent, which parent is more likely to let the child have frequent and continuing contact with the other parent.Cal. Fam. Code § 3040(a)(1)
• Any evidence that a parent caused human trafficking of the child or the other parent.Cal. Fam. Code § 3040.5
• The child's wishes, if the child is old and mature enough to have a reasoned opinion.Cal. Fam. Code § 3042(a)
• Your child's health, safety, and welfare come first. The law also favors frequent and continuing contact with both parents, unless that contact is not in the child's best interest.Cal. Fam. Code § 3020(a)-(c)

What the judge may not consider

The judge may not consider a parent's sex, gender identity, gender expression, or sexual orientation. A parent's immigration status does not by itself keep that parent from getting custody (Cal. Fam. Code §§ 3011(b), 3040(b), (c)).

Joint custody

No presumption. The law favors neither joint nor sole custody and lets the judge choose the plan that is best for the child. But if both parents agree to joint custody, the law presumes joint custody is in the child's best interest.

The child's wishes

The judge must consider and give due weight to the wishes of a child who is old and mature enough to form a reasoned opinion. A child 14 or older who wants to talk to the judge must be allowed to, unless the judge finds it is not in the child's best interest and says why. A younger child may also talk to the judge if the judge allows it. A child never has to give an opinion.

Domestic violence

If the judge finds that a parent committed domestic violence in the last 5 years against the other parent, the child, the child's brothers or sisters, or certain other people, the law presumes that giving that parent sole or joint custody (legal or physical) is harmful to the child. That parent can overcome this only with proof, and the judge must look at things like a batterer's program, drug or alcohol counseling, a parenting class, probation, restraining order violations, new abuse, and illegal guns. The fact that children benefit from contact with both parents cannot be used to overcome it. If the judge still gives that parent custody, the judge must explain why in writing or on the record. A criminal conviction in the last 5 years for a domestic violence crime against the other parent counts as such a finding.

Who has custody before a court order

Before any court order, a child's legal parents have equal rights to custody. If one parent has died, cannot or will not take custody, or has left the child, the other parent is entitled to custody. When parents are not married, the parent who gave birth is a legal parent. The other parent usually becomes a legal parent by signing a Voluntary Declaration of Parentage with the birth parent or by a court order.

Establishing paternity

How

Both parents can sign a Voluntary Declaration of Parentage (VDOP). It is free. You can sign it at the hospital, or later at a local child support agency, a county birth registrar, a court, or a county welfare office, or in front of a notary. Once it is filed with the California Department of Child Support Services, it has the same effect as a court judgment. Either parent can cancel it within 60 days of signing with the Rescission form (DCSS 0915), unless a court has already made a custody, visitation, or support order. You can also ask a court to decide parentage with a Petition to Determine Parental Relationship (form FL-200), or ask your local child support agency to open a case.

Form

Voluntary Declaration of Parentage (VDOP)

Cancelling it

Rescission form DCSS 0915, filed with the Department of Child Support Services within 60 days of signing (Cal. Fam. Code § 7575).

Agency

California Department of Child Support Services (DCSS), Parentage Opportunity Program
https://childsupport.ca.gov/forms/
1-866-901-3212

Changing an order

You can ask the judge to change a custody or visitation order at any time with a Request for Order (FL-300) in the same case. The judge decides based on what is in your child's best interest. You must explain what has changed since the last order. A joint custody order can be changed or ended if the child's best interest requires it.

Law: Cal. Fam. Code §§ 3022, 3087, 3088

If the other parent does not follow the order

If the other parent does not follow the order, you can ask the local police to enforce it (bring a copy). If your child was taken or kept in violation of the order, the district attorney's child abduction unit in your county must help find and return the child. You can file for contempt of court if the other parent broke the order on purpose. You can ask the judge for money to cover reasonable costs when a parent did not take care of the child as ordered or blocked your parenting time (you must show at least $100 in costs, or at least 3 times in the last 6 months). You can also ask to change the order, or ask for child abduction prevention orders (form FL-312), such as supervised visits, travel limits, or giving up passports.

Law: Cal. Fam. Code §§ 3028, 3048, 3130, 3131

Grandparent visitation

Yes. A grandparent can ask for reasonable visitation if there is an existing bond with the child that makes visits good for the child, and the judge finds the child's interest in visits outweighs the parents' right to decide. If the parents are married, a grandparent can only file in certain cases: for example, the parents live apart, a parent has been gone for more than a month and the other parent does not know where, a parent joins the request, the child does not live with either parent, a stepparent adopted the child, or a parent is in jail or in an institution. If both parents agree there should be no visits, or the parent with sole custody objects, the law presumes visits are not in the child's best interest. Grandparents can also ask in an existing divorce or custody case. If a parent has died, that parent's children, brothers, sisters, parents, and grandparents can ask for visits.

Custody by someone who is not a parent

A judge can give custody to someone who is not a parent, over a parent's objection, only after finding that parental custody would harm the child and that custody with the non-parent is in the child's best interest. Harm can include taking the child away from a stable home with a person who has cared for the child as a parent for a long time. The judge can also allow visits by a stepparent, a former legal guardian, or another person with an interest in the child. A relative raising a child may also ask for a guardianship.

Custody and visitation in the order

Yes. With a Request for Child Custody and Visitation Orders (form DV-105), the judge can make a temporary custody and visitation order, even the same day or next business day in a temporary restraining order. The order must say the time, day, place, and manner of child exchanges, and can require supervised visits or no visits. Custody orders made after the hearing keep working even after the restraining order ends. There is no filing fee.

Military parents

If a parent is called to military duty, is mobilized, or is deployed out of state, that absence or move alone is not enough to change a custody or visitation order. A change made because of a deployment is temporary. When the parent returns, the law presumes the earlier order will apply again unless that is not in the child's best interest.

Law: Cal. Fam. Code § 3047

Preventing abduction

Form: Request for Child Abduction Prevention Orders (FL-312)

Law: Cal. Fam. Code § 3048(b)