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Child Custody in California

What is Child Custody in California

Child custody is a legal term used in family courts to describe the sharing of parental responsibilities and rights in a separation or divorce in California. In most child custody cases in California family courts, when the courts determine custody, a determination on visitation will also be made. Visitation refers to how each parent legally spends time with the child.

In California, either divorcing parent may have custody of the child, or the parents may share custody. Although the court makes the final decision on custody and visitation, typically, the court accepts the arrangement or parenting plan reached by both parents. If the parents adhered to a custodial arrangement for an extended period of time and the schedule has been determined to be beneficial to the child, the court may use it as the basis for issuing a child custody order. Although California's child custody laws do not mandate the judge to follow the parents' plan or schedule, if the arrangement is working, the court usually sticks with the schedule. This perspective aligns with California's belief that stability and continuity for the child are of utmost concern.

If the divorcing parents are unable to come to an agreement on custody, a judge will decide the matter in a court hearing. Typically, the court will defer judgment on custody and visitation until after the parents have met with a Family Court Services mediator.

Child Custody Laws in California

Like many states in the United States, California adopted the Uniform Child Custody Jurisdiction and Enforcement Act in establishing its child custody laws as codified under Section 300 et. seq. of the California Code. Under California child custody laws, a mother automatically gains custody of a child if she is not wed to the father of the child. Hence, no need exists to take legal actions towards obtaining the child's custody. Note that the unwed mother will still be required to be determined fit in the eyes of the court to obtain full custody. If the father is unwed to the child's mother, the father must first prove legal paternity before arrangements with the mother regarding child custody may be made. Once paternity has been established, the father earns the legal right to make important decisions about the child's welfare, especially when it pertains to relocation. Additionally, the father may obtain legal rights to pay child support, seek a visitation schedule, and other arrangements agreed upon by both parties and approved by the court.

California child custody statutes permit both divorcing parties to agree on custody issues without court proceedings. Pursuant to Section 3080 of the California Family Code, if both divorcing parties come to an agreement on custody arrangement and parenting plan, the judge is authorized to presume that joint custody is in the child's best interest. Per Section 3011 of the Family Code, a California court will make custody decisions in the child's best interest if both parents cannot agree on custodial arrangements.

According to Section 3010 of the California Family Code, in a child custody determination in California, the court presumes that both parents are equally entitled to child custody; the judge must not hold any bias towards either parent. To make a determination on what is in the child's best interest, the judge will consider the following:

  • The child's safety, health, and welfare
  • Whether either divorcing parent has a history of abuse towards the child or the other parent
  • The type and extent of contact with both parents
  • Whether either parent has a history of illicit drug abuse, alcohol abuse, or prescription medication abuse
  • Whether the child will be separated from other siblings. California child custody laws provide firm protection of sibling relationships in a divorce. Unless strong reasons exist, such as severe emotional, physical, or educational need, an order splitting siblings across custodial households will often not be issued.
  • Any other circumstance deemed significant by the court as stated under California Family Code Section 3011.

Additionally, since January 1, 2012, California custody law allows the court to consider a child's custody preference. If a child is at least 14 and is mature enough to express a choice, the court will give that preference significant weight. If the court determines that the chosen custodial arrangement is not in the child's best interests, the judge will grant custody based on the other factors. Pursuant to Section 3042 of the Family Code, the court may also consider a younger child's custodial preference but give that preference less weight than an older child's preference.

Section 3041 of the California Family Code permits nonparents, such as a grandparent, to obtain child custody regardless of parental consent. This is called guardianship, where the individual granted custody of the child is not a biological parent. Still, for guardianship to happen, the court must determine that awarding child custody to the nonparent is in the child's best interest. Common grounds on which a grandparent or a nonparent can be granted child custody include:

  • The parent or parents are suffering from physical or mental health issues, including substance abuse.
  • Parents are divorced or are experiencing additional difficulties such as unemployment or incapacitation
  • The parents are either imprisoned or unable to be there for the child.
  • The child is being mistreated or neglected

Following the issuance of a custody and visitation order by a California court, one or both parents may want to modify the order. There are several legitimate reasons for modifying a parenting plan. For example, when a child gets older, the child's needs, interests, and activities change. Also, as both divorcing parents progress in their lives, new partners, new careers, or new homes may require that the existing custodial arrangement be modified.

If both parents agree to the modifications, they may amend the court order by an agreement. However, if the parents cannot agree on the modifications, one of the parents must petition the court for an amendment of the current child custody and visitation order. According to California child custody laws, you may request a modification of the custody and visitation agreement if you can demonstrate that there has been a significant change in circumstances since the final custody order was entered.

A significant change in circumstances may be granted if you can prove that:

  • The other parent's new job necessitates relocation.
  • The other parent's work schedule has changed.
  • The other parent must relocate from the location where the child lives.
  • The other parent is involved in alcohol or drug abuse.
  • The other parent neglects the child and is now unable to satisfy the child's basic needs.
  • The child is being subjected to physical or emotional abuse.
  • The other parent no longer abides by the existing child custody order

Per California child custody laws, a parent may file for a modification of the parenting agreement every 30-36 months after the issuance of the current agreement or order.

Types of Child Custody in California

When parents or a court decides on custody in California, both physical and legal custody rights will be considered. Parents may be granted joint or exclusive custody of their child within the confines of physical and legal custody.

Legal Custody

The term legal custody refers to whether either or both divorcing or separating parents have the authority and obligation to make significant decisions concerning the child's health, education, and welfare. Legal custody orders are classified into two types:

  • Sole Legal Custody: According to Chapter 3006 of the California Family Code, a sole legal custody order establishes that one parent has the authority and obligation to make decisions about the child's health, education, and welfare. Hence, either you or the other parent in a divorce has the sole right to make important decisions on the child's circumstances, including where the child attends school, what religion the child practices, medical decisions, travel plans, and residence.
  • Joint Legal Custody: Per California Family Code 3003, joint legal custody order establishes that both parents share the right and obligation to make decisions about the child's health, education, and welfare. As a result, both divorcing parents can legally make decisions concerning the child.

In most child custody cases, courts prefer to grant joint legal custody orders to keep both divorcing parents involved in the child's life and ensure that both parties have equal input and influence over important decisions regarding the child's health, education, and welfare.

Physical Custody

A physical custody order specifies which parent will have physical custody of the child. Physical custody orders come in two forms:

  • Sole or Primary Physical Custody: Under California Family Code 3007, a sole physical custody agreement provides that the child remains with and be supervised by one parent, subject to the court's authority to order visitation. As a result, the child will reside with a custodial parent, who may be either divorcing parent. If you have primary or sole physical custody, the other divorcing party will likely be awarded visitation privileges.
  • Joint Physical Custody: Pursuant to California Family Code 3004, joint physical custody offers substantial periods of physical custody for each parent. Joint physical custody is intended to guarantee that the child has frequent and continuing contact with both divorcing parents. Hence, the child will live with both parents, but the time may not be evenly split owing to school and job requirements.

How to File for Child Custody in California

The steps to take in filing for child custody depend on whether you have an ongoing family court case or starting a case for the first time. If you have an ongoing case in court and want to request a hearing for custody and visitation, follow these steps:

  • Complete the required court forms: Fill out Form FL-300. You may use the Information Sheet provided on the California courts website to obtain more information on completing the form. You may also complete the FL-311 Form for child custody and visitation application form. The FL-311 form is optional.
  • Get your forms reviewed: You may ask your court's self-help center or family law facilitator to review your paperwork for completeness. Alternatively, you may hire your own attorney to review your paperwork or get legal advice.
  • Make a minimum of 2 copies of all your forms: The original copy is for the court, one copy is for the petitioner, while the other copy is for the child's other parent.
  • File your petition forms with the clerk of the court: Submit your forms to the clerk of the court. Original forms will be filed and the clerk will return the copies to you, stamped "Filed". A filing fee may be required. A waiver may be obtained for persons who cannot afford the fee.
  • Get a court date or mediation date: The clerk will assign you a court date after filing your child custody petition form. You may be required to meet with a mediator prior to your court appearance or attend a mediation orientation. If you are unsure, consult the clerk.
  • Serve a copy of the paperwork on the other parent: Serve a copy of all papers and Form FL-320 on the other parent. Under California law, if you are the petitioner, you do not qualify to serve the other divorcing party. Verify by checking the front page of Form FL-300 to see if the court ordered you to serve any other documents. For more information on serving other parties in a divorce, check the service page on the California courts website. The other parent must be served in person and at least 16 court days before your court date.
  • File your proof of service: Request that your server completes a proof of service (The server may use Proof of Personal Service (Form FL-330)) and return it to you so that you may file it with the court. It is critical that your server correctly completes the Proof of Service form. If possible, have the form reviewed by your family law facilitator to ensure it is completed correctly. If you were permitted to serve the documents by mail and did so, have your server complete Form FL-335.

If you do not have an ongoing case in court or you intend to file a petition for custody and support of a minor child or have to file an emergency child custody petition, visit the Asking for a Custody Order page on the California courts website for specific steps on filing for child custody.

How to Get Full Custody of a Child in California Without Going to Court

You can obtain full custody of a child in California without going to court if both divorcing parents agree to grant one of the divorcing parties full custody of the child.

If both parents cannot reach an agreement, they may be able to do so in mediation. According to Sections 3170 and 3175 of the Family Code, California requires divorcing parents to participate in mandatory mediation before a hearing may be scheduled on the issue of child custody and visitation. Per Section 3160 of the Family Code, each California county family court is required to have a mediator available for child custody conflicts.

Child custody mediation enables a divorcing couple to work out their differences on a parenting plan for their child. In mediation, the divorcing parties are assisted in settling their disputes by an expert (a mediator). If the divorcing parents are able to reach an agreement stating that one of the parents may obtain full custody, the mediator assists them in drafting a parenting plan, which may subsequently be converted into a custody and visitation order if approved by a court.

How Long Does a Child Custody Case Take in California?

The time taken for a child custody case to conclude in California depends on several factors, such as the case's complexity, the case volume in the court where the case is filed, and the number of hearings required before a final determination is made. It may take between 6 months to 2 years for a child custody case to conclude. However, for certain situations when emergency child custody requests are made, the court may finalize the matter in a few hours or days. Emergency custody orders, also called ex-parte orders, are usually issued when one of the divorcing parties can prove that there is a threat of abduction to the child, an actual abduction, or other circumstances where the child is facing an immediate risk of harm.

Child Custody Evaluations (Or Assessment) in California

In many child custody cases, the court cannot depend entirely on the divorcing parties and their witnesses to decide child custody and visitation. The court must depend on others to examine and assess a family's situation. A noncustodial parent facing a request to relocate a child out of California is usually entitled to a custody evaluation or assessment. Child custody evaluations are also called 730 evaluations or 3110 evaluations, in reference to the sections of the state code governing child custody assessments.

A child custody evaluation is a thorough forensic study ordered by the court in which a psychologist helps parents and the court in identifying a child sharing plan or parenting plan that is in the child's best interest. These comprehensive psychological assessments are performed by highly trained psychologists who are compelled by California courts to maintain continuous education in the specialized area of child custody disputes. Typically, these investigations are agreed upon by both parents and then ordered by the court. In other cases, they may be ordered by the Superior Court even without a stipulation.

Usually, child custody evaluations cover various psychological, child custody, and co-parenting concerns. Child custody evaluations are also commonly used by the court in child custody cases where there are concerns about mental illness, drug abuse, alienation from children, domestic violence, or child abuse.

A comprehensive child custody assessment includes:

  • Interviews and psychological tests with the child and the parents of the child
  • Visits to the homes of the parents
  • Collateral interviews with any professionals who have worked with members of the family, such as teachers, physicians, childcare providers, and mental health professionals
  • Interviews with persons who know the family, such as stepparents or significant others residing in the homes of both parents
  • Assessment of court records and other specific records provided by counsel
  • A full and comprehensive report setting forth specific recommendations for a parenting plan

To expedite and reduce the cost of assessments, several counties adopt shorter versions wherever feasible. The judge, attorneys, parents, and evaluator decide on the specifics of the abridged versions of child custody assessments.

Brief assessments, also known as mini-evaluations, are a streamlined version of an evaluation that is often used in situations when a full child custody assessment is not necessary. A brief assessment addresses particular, narrowly specified referral questions that have been identified in a court order by a judicial authority. A brief assessment generally costs roughly half the cost of full assessment, depending on the scope of the examination. Brief child custody evaluators sometimes charge fixed fees for these services, typically between $500 and $5,000. In certain instances, assessors seeking experience may do them for free.

In a brief child custody assessment, an evaluator conducts interviews with the divorcing parents and the child, and may also observe parent-child interactions. Typically, the evaluator checks relevant records and conducts telephone interviews with collateral contacts, including therapists, teachers, and other professionals who have dealt with the family. Psychological testing may be carried out in some cases.

After the evaluator has completed an assessment of the family's condition, the results will be collated into a confidential report that will contain a formal custody recommendation. The report is not accessible to anyone who is not a party to the case. If either divorcing party disagrees with the report, the evaluator may be cross-examined at a trial.

Note that divorcing parents are usually responsible for paying child custody evaluation fees; however, the costs may also be paid by the court in certain instances. Generally, your court order will state who will bear the costs for the evaluation in your case.

Choosing a Child Custody Lawyer in California

Divorce is one of the most emotional situations anyone can go through. When a child is involved, emotions become more intense, guilt and concern over the well-being of the child become heightened, and navigating the process can seem like wading through a maze. Typically, divorcing parents are concerned about how custody and visitation will be determined and which divorcing party will have financial obligations. In order to ensure that the custody and visitation arrangements are in the child's best interests, it is important that you opt for an experienced attorney to fight your case in court. A parent looking to hire a child custody attorney may follow these steps in making a decision:

Find a specialist: Use local listings to find child custody and family law lawyers in your area. Child custody cases are a unique kind of legal action. With your child's future at stake, you want to ensure your attorney is well versed in family law. A simple internet search for a child custody family lawyer in California will yield valuable results.

Do your own research: After assembling a list of child custody attorneys, study each company or attorney. Examine online reviews and other customer feedback. Choose an attorney who has handled issues in your local family court and knows the judges. Limit your list of potential lawyers to a few top firms or attorneys.

Arrange meetings: After narrowing your list of potential lawyers, contact each firm or counsel to discuss your situation. Be prepared to ask crucial questions concerning your child custody lawsuit. Ask about the court process, attorney fees, upfront charges, and any other questions you have. Take notes throughout meetings so you can compare the prospects afterward.

Decide: Review your notes from each session and compare your preferences for each firm or attorney. Choose one that suits your demands and budget. Be aware that a child custody dispute might have significant legal implications for you and your child. Hence, choose an experienced attorney with whom you are comfortable.

Do I Have the Right to Know Where My Child is During Visitation?

You have a right to know where your child is during visitation if the custody order stipulates so or both parents agree to disclose the child's whereabouts in their parenting plan or custodial arrangement. Otherwise, the other parent is not obliged to inform you about the child's location. If the custodial arrangement or the custody order issued in court does not mandate the other parent to disclose the child's whereabouts during visitation, you may file a petition in court to modify the existing order or arrangement to include it.