Custody

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