Custody

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)