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.¹

¹ See Cal.Fam.Code §§ 3002-3007

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.¹

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.² 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.³ The non-custodial parent usually will have visitation privileges.

¹ Ann.Cal.Fam.Code § 3040(a)(1)
² Ann.Cal.Fam.Code § 3006
³ Ann.Cal.Fam.Code § 3007

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.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. The immigration status, sexual orientation, gender identity, gender expression, or sex of a parent, legal guardian, or relative cannot disqualify someone from getting 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.

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

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 Cal.Fam.Code § 3046(a), (b)

A parent cannot get physical custody, legal custody, or unsupervised visitation if:

• s/he is required to be registered as a sex offender and the victim of the sex crime is a minor; or
• the parent lives with someone who is required to be registered as a sex offender due to a felony conviction in which the victim was a minor.¹  

The only exception is if the judge specifically determines that there is no significant risk to the child if the parent were able to have custody or unsupervised visitation.¹

¹ Cal.Fam.Code § 3030(a)(1), (a)(2)

If a parent or non-parent who is seeking custody has committed domestic violence against any of the following people within the last five years, the judge will assume that it is not in the best interest of the child to give that parent or non-parent joint or sole custody:

• the other parent;
• the child;
• the child’s sibling;
• any child to whom the person is related by blood or affinity;
• any child who the person took care of for any amount of time;
• the person’s own parent, current spouse, or cohabitant; or
• someone with whom the person has a dating or engagement relationship.¹

However, that does not mean that the judge will never give that parent custody. After considering the following factors, the judge 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 abusive parent or other person seeking custody:

• 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;
• has committed any further acts of domestic violence; or
• has a domestic violence restraining order issued against him/her but is still in possession or control of a firearm or ammunition in violation of the law.²

The judge cannot consider, however, the general preference in the law for frequent and continuing contact with both parents.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 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(a)(2)(A)
² Cal. Fam. Code § 3044(b)

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

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

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 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 - in other words, agrees to the visits;
4. The child is not living with either parent;
5. The child has been adopted by a step-parent; or
6. One of the parents is incarcerated or involuntarily institutionalized.¹

¹ Cal.Fam.Code § 3104 (a)(1)-(2), (b)(1)-(6)

The judge is supposed to keep the health, safety, and welfare of your child as the primary concern when determining a custody arrangement that is in your child’s best interests.​¹ The judge cannot consider the immigration status, sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child. The judge will look at the following factors as well as other relevant factors:

• any history of abuse by the parent seeking custody against:
  • you; 
  • your child; 
  • your child’s sibling; 
  • 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;² 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.³

Note: The judge must provide a way for the child to not be in front of his/her parents when talking to the judge to express his/her wishes. The judge can only allow the child to testify in front of his/her parents if the judge specifically believes that doing so is in the child’s best interest and explains his/her reasons why.⁴

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 within the past five 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.⁵ See Can a parent who committed violence get custody? for more information.

¹ Cal. Fam. Code § 3020
² Cal. Fam. Code §§ 3011; 3040(b)
³ Cal. Fam. Code § 3042(a)-(d)
⁴ Cal. Fam. Code § 3042(f)
⁵ Cal. Fam. Code § 3044

You cannot be placed on supervised visitation, be denied custody or visitation, or have your custody or visitation rights limited due to the fact that you did any of the following:

• you reported suspected sexual abuse of the child;
• based on a reasonable belief, you acted within the law to determine if your child was the victim of sexual abuse; and/or
• you sought treatment for your child from a licensed mental health professional for suspected sexual abuse.¹

However, if you made a false report of child sexual abuse during a child custody proceeding or at any other time, the judge can place you on supervised visitation or limit your custody or visitation if the judge finds “substantial evidence” that both of the following are true:

1. your intent was to interfere with the other parent’s lawful contact with the child; and
2. you knew that the report was false at the time you made it. ²

In addition, the judge must believe that limiting your custody is necessary to protect the health, safety, and welfare of the child.²

^​1 Ann.Cal.Fam.Code § 3027.5(a)
² Ann.Cal.Fam.Code § 3027.5(b)

Generally, you can file for custody only in the “home state” of the child. There are exceptions to the “home state” rule though – 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.¹

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. Coming to California because the child has been unable to obtain gender-affirming health care or gender-affirming mental health care in the home state would be considered a significant connection. Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state decide the case (have jurisdiction).²  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; 
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; or
3. The child has been unable to obtain gender-affirming health care or gender-affirming mental health care in the home state.³

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 six months, the temporary custody order from California 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 six months, the California 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 California 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.⁴

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.

¹ Ann.Cal.Fam.Code § 3421(a)(1)
² Ann.Cal.Fam.Code § 3421(a)(2), (d)
³ Ann.Cal.Fam.Code § 3424(a)
⁴ Ann.Cal.Fam.Code § 3424(a)-(d)

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.¹ 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.² 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.³

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, such as counseling, 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.⁴

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

¹ See Cal.Fam.Code § 3161; see also Cal.C.C.P. § 1775.1
² Cal.Fam.Code § 3164(a)
³ Cal.C.C.P. §1775.2(b)
⁴ Cal.Fam.Code § 3183

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 California or if the child and one parent no longer live in California and substantial evidence is no longer available in California concerning the child’s care, protection, training, and personal relationships.¹

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.

¹ See Cal.Fam.Code § 3422(a), (b)

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.¹ 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.

¹ Cal.Fam.Code § 6340(a)

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).¹ 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.²

¹ Ann.Cal.Fam.Code § 3047(b)(1)
² Ann.Cal.Fam.Code § 3047(b)(3)(A)

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 electronic means, if these are reasonably available to the judge and the process is fair to all parties.¹

¹ Cal.Fam.Code § 3047(c)